Does remastering a song create a new copyright?

Copyright law grants the creator of a new work a group of exclusive rights to the work. A copyright is granted to the creator of a work when then fix the work in a tangible medium. A creator fixes a work in a tangible medium when they put there work in a form that exists outside their mind. For instance, when an artist applies paint to a canvas, an author saves their novel to a computer hard drive or a musician records their song to a compact disk. In the United States a copyrighted work can be registered with the Copyright Office of the Library of Congress to gain additional protections, but registration is not required to be granted a copyright.

Copyright law grants the owner of a copyright the exclusive right to reproduce, display, perform, distribute the copyrighted work and to make derivative works based on the copyrighted work. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can sue to stop copyright infringement with an injunction and to get monetary damages for copyright infringement which has occurred.

An interesting nuance of copyright law is that the copyright of different creators can overlap. The copyright a song writer holds to a song written by them, is separate and distinct from the copyright held by someone who records them self performing the song. The singer needs a license from the song writer to distribute recordings or else the singer may be liable for infringing on the song writer’s copyright, but the singer is granted a copyright separate from the song writer’s copyright.

Because the song writer’s and the singer’s copyrights are separate, the copyrights also have different expiration dates. The copyright on a song could expire before the copyright on the recording which would mean other people could record their own version of the song without infringing on the copyright held by the singer.

The situation of separate and distinct copyrights for a written version of a song and recording of a song raises an interesting question. Records and magnetic tape which were used in the past to record songs can decay and loose fidelity. Remastering is the practice of taking an old recording and recording it again on new media to improve the sound quality. When an existing recording of a song is remastered, does the remastered version of the song create a new copyrighted work?

A case which deals with the issue of copyright on remastered song recordings is ABS ENTERTAINMENT, INC. v. CBS CORP, 16-55917 (9th Cir 2018). In this case the plaintiffs owned sound recordings embodying musical performances initially fixed in analog format prior to February 15, 1972. They remastered these pre-1972 sound recordings onto digital formats. Under the Sound Recording Act, sound recordings fixed after February 15, 1972, are subject to a compulsory license regime for performance via digital transmission and are excused from infringement for performance via terrestrial radio. Works recorded before 1972 were not subject to a compulsory license. The defendants claimed that their use of the remastered works, made after 1972, was covered the Sound Recording Act because the remastered works were derivative works of the original and hence covered by a separate copyright. The district court sided with the defendants.

The Ninth Circuit over turned the district court’s decision. The Ninth Circuit held that moving a sound recording from one medium to another does not exhibit the minimum level of originality to be copyrightable. Therefore converting analog sound recordings made before 1972 to digital sound recordings does not make the sound recording subject to a compulsory license for radio transmission.

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