CBS Argues Remastered Versions of Old Songs Original Enough to Be Copyrighted

Does adjusting the loudness and timbre of a sound recording mean indefinite copyright duration, but no ability to stop radio stations from playing it?
Associated Press

Typically, when someone gets sued for misappropriating someone else's piece of authorship, the defendant goes out of the way to show the work isn't worthy of the broadly claimed protection. But in the topsy-turvy case of ABS Entertainment v. CBS Corporation, the defendant is the one theorizing the broad reach of copyright law.

ABS, which owns the recordings of Al Green and others, is suing CBS over the public performance of its pre-1972 sound recordings. For decades, radio operators have assumed no need to pay anything to broadcast tunes because of copyright limitations, but the fact that such recordings are not covered by federal copyright law has become a sticky legal issue. That's because such recordings then fall under state laws, recently interpreted by judges in California and New York to protect public performance.

But this latest case has a twist.

After CBS Radio was accused of misappropriating dozens of pre-1972 songs, the defendant insisted it was not playing pre-1972 songs. What it was actually doing, maintained CBS, was playing the CDs that contained the later remastered versions. And those versions were subject to copyright with only a limited public performance right for the digital use.

But wait, ABS objected.

Remastered versions, said ABS, are "only mechanical processing adjustments ... made to optimize the recording for a particular technological format" —  not a remix, not an edit, no new sounds. So is it fair to call it a derivative? ABS begged the judge to think of the implications: "If a derivative work could be created without some substantial, creative modification of the sound recording itself — through mixing, editing, resequencing or adding/deleting sounds — the copyright duration could be extended indefinitely by continuing to remaster into new formats as technology changes." 

On Monday, CBS filed its response, shrugging off the implications to focus on the premise: "Although plaintiffs’ expert, Paul Geluso, argues that the remastered recording incorporates the original and that there is no evidence of remixing, editing (the addition or removal of sounds), Mr. Geluso agrees that CBS’ recordings differ from plaintiffs’ sound recordings in terms of spectral content (tonal characteristics and timbre), loudness range, and spatial imagery/stereoization."

That, according to CBS, meets the low bar of originality under federal copyright law.

CBS' own expert William Inglot testifies to the art of remastering.

"Plaintiffs pejoratively label all remastering work (whether by Mr. Inglot or anyone else) as 'mechanical,'" continues CBS. "They insist that, because machines and knobs are involved, the processes involved no human direction or control. But at deposition, plaintiffs agreed that the choices Mr. Inglot and other engineers made in remastering these songs were creative and subjective."

ABS insists "the undisputed facts show that no one has ever claimed a federal copyright for the remastered copies of Plaintiffs’ pre-1972 works at issue in this case."

CBS disputes the undisputed.

According to its brief, "As shown in the liner notes to The Best of Al Green: Millennium Collection, Hi Records (the predecessor-in-interest to Plaintiff ABS) claimed a 2000 sound recording copyright in 'Tired of Being Alone,' designated by the '℗' symbol. Moreover, it is an irrelevant issue. A copyright owner does not need to claim or register a work before the rights under federal copyright law attach to it."

Here's the ABS opposition authored by attorneys at McKool Smith and the CBS response from Robert Schwartz at Irell & Manella.

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