CBS recently secured a potential landmark victory that could benefit radio stations, streaming services, and satellite radio providers—many of whom have been mired in litigation for years with owners of sound recordings of “oldies” music. The court in ABS Entertainment, Inc. v. CBS Corp., et al., No. 15-cv-6257, (C.D. Cal.) found that remastered versions of pre-1972 songs by artists such as Al Green and The Everly Brothers are protectable under federal copyright law because the remastering process added sufficient originality. The decision extinguished the claims under California law that CBS violated the plaintiffs’ public performance rights in the pre-1972 sound recordings by playing those songs on terrestrial and internet radio.
Since 1972, federal law has granted copyright protection for sound recordings to the performer and the persons responsible for capturing and processing that particular sound recording. For traditional radio stations, satellite radio providers, and streaming services, obtaining permission to play federally-protected sound recordings is straightforward: no permission is required for terrestrial broadcasts, which are exempt, and most satellite and streaming broadcasts are subject to a compulsory license. But things get tricky when it comes to oldies because pre-1972 sound recordings were not protected under federal law, but still may be subject to the copyright laws of individual states, including California.
This has led to a rash of lawsuits by owners of pre-1972 sound recordings (like the plaintiffs here) claiming that broadcasters like CBS are infringing the owners’ state-law public performance rights by playing oldies. And the owners of these oldies have been successful in California. For example, in two recent cases, courts found that Sirius XM and Pandora infringed state-law copyrights by publicly playing pre-1972 sound recordings in California. (The issue of whether California law grants an exclusive public performance right to pre-1972 recordings is currently on appeal to the Ninth Circuit.)
Here, CBS relied on the novel argument that remastering the pre-1972 recordings at issue to convert them from analog to digital format created new derivative works independently protectable under federal copyright law. And because CBS only played remastered versions of the oldies at issue in this case, it could not be liable for infringing plaintiffs’ state law rights in their pre-1972 sound recordings. In other words, CBS could not infringe the California copyrights in old, analog versions of the oldies because it played new, remastered digital versions of those songs.
There was no dispute that the remastered versions were created with permission. Thus, to succeed, CBS had to convince the court that the remastering process injected sufficient original expression into the old analog recordings to create a new, protectable, derivative work. It did so through two experts: a sound engineer who showed that remastering old sound recordings involves creative choices, including adjusting frequencies to alter the emphasis on certain vocal and instrumental sections; and an acoustic engineer who compared the analog and remastered digital versions and highlighted their differences. The court also excluded evidence from plaintiffs’ expert, who failed to disclose the results of some testing and relied primarily on “actively listening” to the songs, which the court derisively described as “listening while paying attention.”
Ultimately, the court found that the remastered versions of the recordings reviewed by both parties’ experts contained sufficient original expression to warrant federal copyright protection. As a result, CBS had authority to play those songs, and plaintiffs’ claims were dismissed.
Whether this decision has far-reaching effect will be interesting to watch. To be sure, broadcasters cannot rely solely on the fact that they played remastered versions, because simply converting a sound recording to a new medium is not enough to invoke federal copyright protection. The key, as always in copyright law, is originality. Whether other broadcasters can demonstrate that the remastered versions they played contained sufficient originality remains to be seen. However, experts on both sides acknowledged that, as a general matter, the remastering process involves creative and subjective choices, suggesting that the minimal amount of originality needed to invoke federal copyright protection could exist in many remastered oldies.
There are also issues of contract law noted by the court that may be relevant in other cases, such as whether the license to create the derivative remastered sound recordings prohibited the creation of a copyrightable derivative work.
In terms of the dispute between the parties to this case, one assumes that plaintiffs will appeal in California. The parties are also litigating a nearly identical lawsuit in the Southern District of New York under New York law. CBS informed the New York court of the decision in California shortly after it was issued, and on June 13 plaintiffs responded, raising some of the same arguments rejected in California. The TMCA will keep a close eye on these cases and will update our coverage as developments unfold.