PASADENA, Calif. (CN) – The music of the Everly Brothers, the Chi-Lites, Al Green, Elvis Presley, Frank Sinatra, the Turtles and many more recorded before 1972 are exempt from federal copyright law, an attorney for radio giant CBS told a Ninth Circuit panel on Thursday.
CBS successfully beat federal claims brought by ABS Entertainment over remastered versions of oldies recorded before 1972, with a federal judge finding CBS’ remasters constitute new material or derivative work governed by federal copyright law. ABS appealed, leading to Thursday’s hearing.
“These are not merely analog to digital transfers,” CBS attorney Robert Schwartz told the three-judge panel. The engineer who remastered 46 recordings created a new recording that meets a “personal aesthetic” from the original sound, according to the attorney.
“The purpose of these recordings is not simply to make something as authentic or clear or clean. That’s de-clicking, de-hissing,” Schwartz said. “That’s not what we’re dealing with here. The purpose of the remasters is to create something completely different.”
As the creator of the remasters, CBS is free to sell what it created, Schwartz said.
Circuit Judge Richard Linn, sitting by designation from the Federal Circuit, appeared to doubt something new had been created.
“But it’s the same sound recording,” Linn said.
Schwartz replied that while the CBS remasters contain the same studio performances, they are not but the same recordings. Those recordings were made before 1972, while the remasters were created decades later.
Linn persisted: “It doesn’t have different musicians, it doesn’t have different artists.”
That doesn’t matter, Schwartz said, telling the panel they “need to think of this as a painting.”
Picking up on that, Circuit Judge Marsha Berzon posed a situation where someone is paid to clean the Mona Lisa.
“You have the Mona Lisa, let’s assume it’s copyrighted for some reason and it’s very dirty,” and someone basically restores it through a skilled process. “Is that a new work?” Berzon asked.
Schwartz said if paint is added then it becomes creative expression. Taking that analogy further, the person who restores a painting could see a feature in the background and bring it out for others to view, he said.
“That’s what sound engineers do,” Schwartz said, noting that creative expression has been upheld for copyright numerous times by courts.
Robert Allen of McKool Smith Hennigan, arguing for ABS, said the federal judge ignored a section of copyright law by finding “digital copies of sound recordings were subject to federal law, even though every sound in every copy at issue embodied only sounds that were initially fixed prior to 1972.”
The lower court used the wrong test to determine whether or not a derivative work was authorized and created, Allen said. He said changing the quality of a song should be subject to patent law and not copyright.
Berzon asked, “Couldn’t you under some circumstance change the sound sufficiently through a remastering process that a lay person could hear?”
Allen said, “I would argue it would make no difference. In a remastering you could perhaps remix a recording to add a new a track that was recorded after 1972, then raise the issue about pre-72, post-72 in that recording.”
But that didn’t happen, Allen said, and federal copyright law is clear as to when a sound recording is subject to federal law only or state law.
Circuit Judge Paul Watford asked, “Don’t we have to wait for the California Supreme Court to tell us whether you even have a right under state law?” The Golden State’s high court will decide a case related to a state law that gives owners of pre-1972 songs an exclusive right in public performance.
That case doesn’t apply here, Allen said, since ABS’ complaint involves redistributing recordings without permission – not playing the songs.
Last month, the founding members of the group The Turtles lost a similar case at the Florida Supreme Court, which ruled that SiriusXM satellite radio does not owe royalties for playing the band’s hits recorded before 1972.