The Ninth Circuit recently reversed the trial court by determining that remastering by itself, without substantially altering the underlying music, does not give rise to independent copyrightability of the remastered version as a derivative work.
In a dispute over alleged copyright infringement pre-1972 sound recordings between CBS Radio and ABS Entertainment, CBS had argued they o longer play vinyl sound recordings on the radio, but rather the remastered versions of those sound recordings. They further argued that any state misappropriation claim would therefore be preempted by federal copyright law, and owners of pre-1972 recordings wouldn’t have any claim for compensation.
This argument was successful at trial, but as noted above, was reversed on appeal. The court wrote, “[I]t should be evident that a remastered sound recording is not eligible for independent copyright protection as a derivative work unless its essential character and identity reflect a level of independent sound recording authorship that makes it a variation distinguishable from the underlying work."
So this issue is resolved, right? Remastering does not create a new copyright. Well, not completely. Arguably, if a sound recording owner remixed a track so that its “variation[s are] distinguishable from the underlying work” in addition to remastering, that would allow the remixed/remastered version to be copyrightable as a derivative work. Only time will tell.
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