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authorshipé) has been debated in copyright circles for some time. Here, the

Court looked at a summary of the law that had been prepared in a Circular
distributed by the Copyright Office, which listed certain criteria that could be

applied in determining whether a re-recorded work had sufficient creativity to

merit a copyright. The Court also looked at specific evidence offered by
recording engineers that showed how they used independent creative

judgment in deciding to enhance certain elements of the recording in the

digital version and to suppress others. The testimony showed that the digital

version was the result of more than simply hooking the analog source material

to a digital recorder and distributing the result. Human intervention in deciding
how to materially change the original work to produce a new digital work was

found by the Court - deciding that this was a classic version of a derivative

work, authorized by the Copyright holders themselves when they
commissioned the digital versions of the recordings. Thus, these works were

entitled to their own copyright - a copyright that arose when the work was

created after 1972.

However, in August, 2018, the US Court of Appeals for the Second

Circuit decided to defer its consideration of an appeal of a District Courtûs

decision that New York law included a public performance right for pre-1972

sound recordings. The Court deferred its decision until it can get a definitive
answer as to whether or not such a right exists under New York state law.

To get that definitive answer, the Court of Appeals referred the question to

the New York State Court of Appeals (the highest court in New York State)
asking it to issue an opinion as to whether the right exists. Reading the order

referring the case to the New York state court, there are a number of

interesting issues addressed, including a discussion that could help decide the

ramifications for over-the-air broadcasters who play these recordings. What

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