CBS defeats claims that it infringed copyrights in pre-1972 sound recordings by performing recordings on radio broadcasts, successfully arguing that it performed only post-1972 remastered versions of recordings and that those versions were sufficiently original to fall under federal copyright protection.

Plaintiffs ABS Entertainment, Inc., Barnaby Records, Inc., Brunswick Record Corp. and Malaco, Inc., own sound recordings of classic artists including Al Green, The Everly Brothers and The Chi-Lites, which were initially fixed prior to Feb. 15, 1972. While songs (the musical composition of notes and lyrics) have long been protected by federal copyright law, it wasn’t until 1971 that Congress granted federal copyright protection to any specific performance of a song fixed in a medium (a sound recording) — and only to those created after Feb. 15, 1972. This left sound recordings fixed prior to that date governed by a patchwork of state laws. The plaintiffs filed a putative class action against CBS Corp. and CBS Radio Inc. alleging that CBS and others infringed on their exclusive public performance right under California copyright law by broadcasting their sound recordings.

Under federal copyright law, terrestrial “over-the-air” radio broadcasters are not required to pay any fees for broadcasts of post-1972 sound recordings. Additionally, transmissions of sound recordings created after 1972 via noninteractive internet radio services are covered by a compulsory license that allows the internet radio service to play these recordings by paying a license fee to SoundExchange, an entity that collects and distributes these fees as royalties to the owners of the post-1972 sound recordings.

The district court has interpreted California Civil Code section 980(a)(2) as including an exclusive public performance right in pre-1972 sound recordings. Under this law, the plaintiffs claim CBS is liable for infringing on their state law copyrights for its performance of 174 of their recordings on its radio broadcasts and transmissions.

Moving for summary judgment, CBS argued that it was entitled to the protection afforded by federal copyright law because it had only broadcast versions of plaintiffs’ recordings that had been remastered after Feb. 15, 1972, and that these remastered versions constitute derivative works governed by federal copyright law. At issue was whether a sound engineer’s remastering of a sound recording “through subjectively and artistically altering the work’s timbre, spatial imagery, sound balance, and loudness range, but otherwise leaving the work unedited,” is entitled to federal copyright protection.

The district court focused its analysis on one of the “bedrock principles of copyright law” —whether the work has sufficient originality. The district court noted that the degree of creativity need only be “minimal” and that this standard does not change when judging the originality of a derivative work. However, “the variation from the original must be sufficient to render the derivative work distinguishable from its prior work in a [ ] meaningful manner” and it must be more than “trivial,” the district court pointed out.

The parties debated whether the changes made to an original sound recording during the remastering process have sufficient originality to obtain copyright protection under the Copyright Act. CBS, in arguing that a remastered sound recording has sufficient originality, submitted a declaration from a music engineer who stated that the remastering process is guided by the engineer’s “personal aesthetic” and that two different engineers will produce remastered recordings that sound noticeably different. Another of CBS’s experts testified that the remastering process involves “subjectivity, originality, and ultimately produces works of art.” Both experts spoke to the mastering engineer’s artistic choices in adjusting the equalization of various frequencies in a recording, the spatial imagery of the sounds, and amplitude levels of various instruments and voices in a recording and of the recording as a whole.

The plaintiffs, on the other hand, argued that the remastering process is simply a digital conversion of a sound recording using mechanical processing and is therefore lacking in originality and not copyrightable. The plaintiffs’ expert testified that the versions of the recordings that CBS performed on its radio broadcasts “embodied” the same performance as the plaintiffs’ pre-1972 recordings. However, CBS countered — and the district court agreed — that the plaintiffs’ expert’s testimony was inadmissible because it was “irrelevant, unscientific, based on unreliable methodology, and [lacked] adequate foundation as expert testimony.” Finding a number of issues with the plaintiffs’ expert’s methods, the district court ultimately disregarded much of plaintiffs’ evidence. It concluded the plaintiffs failed to offer sufficient evidence to create a genuine dispute of material fact as to the amount of originality added during the remastering process.

The district court cited Maljack Prods., Inc. v. UAV Corp., a dispute over the editing of a motion picture’s audio track in which a district court held that a “‘derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed or otherwise altered in sequence or quality’ is a protectable new work.” Using Maljack as a guide for the requisite level of originality required for copyrightability, the district court ruled that the evidence showed that the remastered versions of the plaintiffs’ pre-1972 sound recordings had undergone sufficient changes to qualify for federal copyright protection. It concluded that the differences were not “trivial,” but rather reflected “multiple kinds of creative authorship, such as adjustments of equalization, sound editing, and channel assignment.”

The district court disposed of the plaintiffs’ additional arguments as lacking merit. First, it rejected the argument that a pre-1972 sound recording governed by state copyright law cannot be converted into a post-1972 derivative work governed by federal law. The district court explained that a derivative work can fall under federal copyright protection even if the pre-existing work cannot, as long as the pre-existing work is within the general subject matter of copyright.

Second, the district court found no evidence supporting the plaintiffs’ argument that if the original work sound recordings were removed from the derivative work remastered versions, there would be nothing to perceive and therefore the derivative works are not copyrightable. Third, the district court rejected the plaintiffs’ argument that they never authorized the creation of derivative works by the mastering engineers because they failed to produce contracts with those engineers showing that they affirmatively barred the creation of derivative works. Finally, the district court rejected the plaintiffs’ argument that CBS had infringed on the copyrights to their pre-1972 works that were embedded in the remastered derivative works, pointing out that CBS had the right to perform the post-1972 remastered sound recording derivative works, which is what they did.

Because the plaintiffs failed to create a dispute of material fact on the issue of originality of remastered sound recordings, the district court held that CBS was entitled to summary judgment as to the 57 works reviewed by both parties’ experts. Regarding an additional 117 works addressed in the plaintiffs’ allegations that had not been analyzed by the experts, the district court determined that the plaintiffs had not provided any admissible evidence demonstrating that CBS had even performed those works. Therefore, CBS was entitled to summary judgment on those recordings as well.