By Timothy McMahon (Rutgers Law Student)
In 2016, a Federal District Court in California sent shock waves throughout the realm of sound recordings. ABS Entertainment vs. CBS Corporation, ABS v. CBS, began when a collective group of copyright owners of pre-1972 sound recordings brought suit against CBS for infringing on their public performance rights under state law. CBS brought forth a daring argument that the sound records they used were not the pre-1972 sound recordings instead when the pre-1972 sound recordings were transferred from analog format to digital format it created derivative works, and thus subject to the compulsory licensing scheme set up under the Copyright Act. The court agreed and found that these digital copies were in fact derivative works. What is most surprising about this holding is how low the court set the bar for originality for derivative sound recordings—a medium that should require a higher originality requirement.
At the heart of the case was the question of originality. The threshold for originality is low and the degree of creativity needed to satisfy originality is only “minimal” or “extremely low”—even a slight amount will suffice. The standard does not change when the work in question is a derivative work, however, there must be sufficient variation from the original work to distinguish it from the prior work in a meaningful manner.
The court relied on Circular 56 to determine whether the new sound recordings meet the minimal threshold of originality. Circular 56 states that a derivative sound recording must “be rearranged, remixed, or otherwise altered in sequence or character, or the recording must contain additional new sounds” to meet the originality requirement. The originality requirement will not be met if “mechanical changes or process, such as a change in format, delinking, or noise reduction” are made to the preexisting work.
CBS argued that changes to the timbre, spatial imagery, sound balance, and loudness were sufficient to meet the originality that Circular 56 laid out. They introduced two sound engineer’s expert testimony—one of the sound engineers personally remastered a number of the sound recordings at issue—to support their argument. The first sound engineer claimed that remastering process requires substantial “personal aesthetic” choices, and a good sound engineer would never do a simply “drag and drop” when converting the sound recording from analog to digital. The second sound engineer performed forensic test that focused on the timbre, spatial imagery, sound balance, and loudness of the two sound recordings and concluded that they were different. He did not elaborate how they differed with regards to these four areas, only that the sound recordings differed. The court found this to be enough originality to be considered derivative works and granted summary judgment.
The court is creating serious problems by holding the bar for originality in derivative sound recordings so low. Holding the originality requirement low for other derivative works is problematic, but these problems are magnified in derivative sound recordings because of the unique nature of a sound recording. Each musical track has two distinct and independent copyrighted works (1) the musical composition and (2) the sound recording. The listener’s focus will be on the musical composition and not pay attention to the sound recording. An artist could modify a painting slightly and viewers will take notice, the same cannot be said about sound recordings. Only when changes are drastic will listeners take notice. The difficulty of ascertaining what has changed in a derivative sound recording calls for a greater originality requirement in sound recordings as compared to other derivative works, and the following problems will emerge if this low standard is kept.
The first of such problems is trying to determine what is actually protectable. In derivative works, only the original elements added to the pre-existing work are actually protected in their copyright. With the bar as low as it was set in ABS v. CBS, it will be difficult—if not downright impossible—to determine what preciously is copyrightable in the derivative sound recording. The sound engineer who performed the forensic test could only determine the sound recordings were different with regard to four areas. He was unable to pinpoint how they were different, only that they differed. If we cannot identify preciously what new element has been added or changed, then we cannot grant copyright protection.
Another problem that could arise from a low bar of originality for derivative sound recordings is the possibility of judicial error in adjudicating cases. In Gracen v. Bradford Exchange, Judge Posner stated that artistic originality is not the same as originality under the Copyright Act and should not be the end all be all for in determining originality. Most artistic choices can be identified and raise no problem with originality, but certain choices may be so nuanced that they escape the notice of the judge. Judges after all are human and are capable of making mistakes, if the originality is ever so slight it is foreseeable that judges will make errors in adjudicating cases. The possibility of this occurring in derivative works is higher, thus Judge Posner required a higher level of originality was needed for derivative works. The possibility for judicial error will be even greater in sound recordings if the originality of a work can only be discovered through a forensic test.
The final problem with holding the bar so low is how will a copyright owner—either the original sound recording or the derivative sound recording—know when their rights have been infringed. Posner allude to this in Gracen, that if an original work of authorship and a derivative work were insurmountably similar it would lead to overlapping claims. When the creator of a remastered work could not identify what he added by the naked ear, how will anyone know which version is being used? How will a copyright owner be able to determine if their rights have been infringed? A higher originality standard would allow copyright owners to know if and when their rights have been infringed upon.
By holding the requirement for originality for derivative sound recordings so low, the court in ABS v. CBS is opening the flood gates for future problems. In order to correct these problems, the Ninth Circuit should overturn the District Court and should implement a higher threshold of originality for derivative sound recordings.