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Digital Remastering Doesn't Create New Copyright

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By George Khoury, Esq. on August 27, 2018 6:58 AM

Before Wi-Fi, iPhones, and energy drinks, back in the 90s, along with the rise of compact discs and the "digital revolution," movies and music began to get "digitally remastered."

Especially early on, digital remastering was perhaps the most frivolous use of the most modern tech available, and criticism of the practice exploded after Steven Spielberg, while remastering E.T. in 2002, replaced the guns in police officers' hands with walkie talkies. If you're having trouble remembering, that's probably because in 2012, when the film was remastered again, the guns were put back into the scene. And though popular opinion may have won that battle, there's no shortage of criticism when it comes to remastered film and music.

Remastering Isn't Creative

One of the bigger legal controversies over remastering involves copyrights, and whether remastering a pre-1972 recording enabled the remasterer to obtain federal copyright protections. Thankfully, the Ninth Circuit has finally chimed in.

The Ninth Circuit heard the case of several copyright holders to pre-1972 music contending that after remastering, the remastered works were entitled to federal copyright protection, rather than just state and common law protections. And while the federal Central District Court ruled that the remastered works were entitled to federal protection, the Ninth Circuit disagreed.

The panel of justices explained that remastering doesn't create a new original work, and should barely even be considered a derivative work. In short, the court found that remastering was simply just changing formats, or making basic mechanical changes, that did not "contain enough original authorship" to warrant a new copyrightable work. In the opinion, the changes caused by remastering were referred to as "trivial, minor, or insignificant."

The Ninth Circuit clarified that position though by explaining 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."

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