9th Circuit Court of Appeals re-masters the law for pre 1972 copyright

October 2018


1972  and copyright, mixed up with satellite radio and internet ‘broadcasting’, has been a rather a touchy subject in the US. Tracks (sound recordings) created before this date have, in the opinion of some, no performance right attached to them for said satellite radio stations – whereas songs created after 1972 benefit from compulsory licences administered by the Copyright Royalty Board and grated under federal law. Of course we now all know a number of artists and rights owners were not at all happy with the position taken by broadcasters such as Sirius XM and this resulted in a flurry of litigation.


The short story is that broadcasters were of the opinion that if a satellite radio station wanted to play a pre-1972 track, there was and is no need pay royalties. For sound recordings created after 1972 the station will be required to pay royalties.


The lead in the litigation was taken by Flo & Eddie of The Turtles who sued using state law to try and gain a performance right – in New York, in Florida, and in California – in the latter state  claiming that under California’s so called common law copyright, they were due compensation from SirusXM for its performance and reproduction of songs that predated 1972.


In the Flo & Eddie case the Central District Court of California found that the owner of sound recordings created before 1972 was entitled to an exclusive right of public performance. This was based on the fact that a 1982 law, that took aim at pre-1972 sound recordings, did not reference the public performance right but equally did not constrict the right. We should note here that in Florida no such right was found to exist, and in New York a finding of the right was over turned on appeal: The Court of Appeals determined that New York common law did not recognise a “public performance right”  in response to a certified question from the U.S. Court of Appeals for the Second Circuit, which inquired whether New York’s common law provides copyright protections for recordings not covered by federal law. Southern District Judge Colleen McMahon had denied Sirius’ motion for summary judgment in 2014, finding that New York common law did provide a public-right performance. It seemingly did not.


On Monday (20th August) the 9th Circuit Court of Appeals recommenced its examination of this topic in the case of ABS Entertainment Inc et al v CBS Corp et al, in which summary judgement was granted to CBS in 2016. The judge found that CBS was using re-mastered recordings which are derivative works and therefore governed by federal law and not state law. That is because it was thought that the re-mastered track attracted a new copyright.

The Court of Appeal has reversed this summary judgement finding that the decision was made too soon. A key feature of the reversal is that a re-mastered track is not likely to have a sufficient level of originality from the original track as to attract a new copyright.


For a work to attract copyright that work must be sufficiently original from previous work. The mere re-mastering of track will change the sound levels but not the actual substance of the track.


Circuit Judge Richard Linn stated that:


“A digitally remastered sound recording made as a copy of the original analogue sound recording will rarely exhibit the necessary originality to qualify for independent copyright protection,”


This is therefore a victory for Flo & Eddie and other artists that have recorded tracks pre 1972 in that if federal copyright law does not apply to re-mastered tracks then artists will be able to rely upon more beneficial state copyright law – BUT – only if state copyright law that does recognise the tracks as being worthy of copyright protection!  This is also a victory for US copyright lawyers who a likely to be kept busy in this second round of litigation!


By Samuel O’Toole (www.lawditmusic.co.uk)


It is possible to read Judge Linn’s opinion here:











Image: https://en.wikipedia.org/wiki/Copyright_infringemen

No Comments

Comments are closed.