NINTH CIRCUIT REVIVES PRE-1972 SOUND RECORDINGS CASE AGAINST CBS
Steven T. Lowe
On August 20, 2018, the Ninth Circuit revived a lawsuit against CBS concerning radio broadcasts of pre-1972 recordings by overturning a ruling by a California District Court Judge in CBS’s favor. That ruling held that “remastered” versions of old songs are entirely new sound recordings. If they are new sound recordings, then the California Civil Code§980 protecting pre-1972 sound recordings did not apply.
This case is being revived after three lawsuits were filed by ABS Entertainment (a company that owns multiple copyrights to sound recordings which were recorded pre-1972) in 2015. Each lawsuit claimed that companies (such as CBS) had failed to receive consent from ABS or license the streaming of sound recordings recorded prior to February 15, 1972. CBS essentially won the lawsuit claiming that they hadn’t broadcast the original analog recordings, but had instead broadcast remastered versions created decades later which the District Court ruled were “entirely new recordings.”
In California, artists are only provided copyright protection for their pre-1972 sound recordings (as opposed to the compositions themselves which are owned by the writers of the melody and lyrics) via California Civil Code §980. This is because Congress did not implement the new Copyright Act (a federal statute) until 1972; thus recordings created prior to 1972 did not receive federal copyright protection under the prior Copyright Act (“1909 Act”).
In reversing the United States District Court ruling, the Ninth Circuit explained that merely improving sound quality and other technical changes do not amount to the kind of original authorship needed for the work to be entitled to copyright protection. U.S. Circuit Judge Richard Linn wrote: “Although we do not hold that a remastered sound recording cannot be eligible for a derivative work copyright, a digitally remastered sound recording made as a copy of the original analog sound recording will rarely exhibit the necessary originality to qualify for independent copyright protection…To qualify as a new copyrighted song, a remastered song’s ‘essential character and identity’ must show ‘a level of independent sound recording authorship that makes it a variation distinguishable from the underlying work.’”
In light of this ruling, the entire case against CBS is dependent upon the result of the case currently pending before the California Supreme Court, Flo & Eddie, Inc. [The Turtles] v. Pandora. That case will determine whether Pandora must pay The Turtles and others for airing their sound recordings under California Civil Code §980.
The case is ABS Entertainment Inc. v. CBS Corp. et al., case number 16-55917, in the U.S. Court of Appeals for the Ninth Circuit.
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