Federal law covers songs

Song tracks remastered after 1972 are governed by federal law, not state law, according to a district judge who dismissed a lawsuit against CBS Corporation seeking royalties for their use of songs originally recorded before 1972.

The lawsuit was filed by ABS Entertainment Inc., which owns the sound recordings of Al Green, Willie Mitchell, and other artists active prior to the implementation of the Sound Recording Act of 1971. ABS Entertainment, Inc v. CBS Corporation, CV15-6257 (C.D. Cal. filed Aug. 17, 2015)

Plaintiffs' attorney Robert E. Allen of McKool Smith told the Daily Journal in October the filing was inspired by the success of The Turtles, a '60s band, who in 2014 successfully argued Sirius Radio XM Inc. violated California law by not compensating artists for playing copyrighted sound recordings made prior to 1972. Flo & Eddie Inc. v. Sirius XM Radio Inc. CV13-05693 (C.D. Cal., filed Aug. 6 2013)

CBS argued the songs they had broadcast on radio weren't the original pre-1972 sound recordings, but remasters created post-1972 that would be governed by federal law. A circular from the U.S. Copyright Office supported the assertion, as it advised that an altered track, be it sufficiently rearranged, remixed, or remastered, would serve as the basis for the copyright claim, rather than the original pre-1972 sound recording.

District Judge Percy Anderson agreed with CBS' interpretation, noting ABS could not prove CBS had used pre-1972 sound recordings "by only demonstrating that CBS publicly performed a sound recording which has the same title and artist as one of the works owned by the plaintiff." While the circular is merely advisory, Anderson noted that it "provides useful guidelines on the issue," which ABS was unable to sufficiently dispute.

"Without affirmative knowledge that no additional sound recordings were created after 1972, it is impossible to conclude from nothing more than an artist and a song title whether the work is in fact a pre-1972 sound recording," Anderson wrote in an order dated Monday.

Howard E. King of King Holmes Paterno & Soriano LLP, who is not involved the case, said he was initially surprised by the judge's decision. But once he'd reviewed the Copyright Office circular, he saw it as "a persuasive and well-reasoned decision."

The circular "clearly deals with re-arranged, re-mixed, or otherwise altered pre-'72 sound recordings and affords them post-'72 protection," King said. "So what appears to be a decision out of left field may actually be right in the wheelhouse."

Plaintiffs had argued the remasters were "simply digital conversions optimized for digital formats using only mechanical processing," and thus were not altered enough to be subjected to federal copyright protections. William Inglot, a music engineer and producer who court documents note remastered some version of at least 46 of the sound recordings at issue in the case, undermined that claim, the judge wrote: He "never made a simple mechanical transfer of the original master to the new master, with no alterations to the sound recording."

William Hochberg of Greenberg Glusker Fields Claman & Machtinger LLP, who is not involved in the case, said, "Some people in the technical side of the recording industry will appreciate" the judge's consideration of the work required during a track remastering.

"When the judge talks about subjectively and artistically altering the timbre, sound range, noise reduction, de-clicking - he's really looking at the kind of work that goes into mixing, that some people in the music industry might say, 'That's not right, that's not creating something new,'" Hochberg said. "The judge really goes into admirable detail in discussing in his opinion what kind of changes a mastering engineer does."

The circular provided a road map for the defendants, according to Douglas L. Johnson, an attorney at Johnson & Johnson LLP who is not involved in the case. But he said the decision to disregard testimony from the plaintiffs' music technology expert witness was what really brought their case down. The judge said that testimony was unscientific and inadequate because it only compared five second portions of the sound recordings,

"The expert should have used that same road map to combat everything CBS' expert witness had said. But really, when the plaintiff expert only went through a couple minutes of each song, how's he going to be qualified?" Johnson said. "The court here really didn't think he did his job."

Hochberg said the plaintiffs were "looking for a big disruptive win" which would have upended traditional radio and satellite broadcasts and "could have accelerated the decline of terrestrial radio in favor of streaming services" or other new listening alternatives.

The decision "is certainly going to throw cold water" on any potential future plaintiffs looking to collect royalties for pre-1972 sound recordings, King said. But anyone with claims left to assert is likely keeping their head down until appeals in this case and others - including Flo & Eddie, which is being appealed in California and Florida and litigated in New York - have been resolved.

Allen did not respond to requests for comment. Robert M. Schwartz, who led an Irell & Manella LLP team in defending CBS, deferred comment to the company. CBS said it was "pleased that the court has ruled that the broadcast of pre-1972 sound recordings that have been re-mastered after 1972 is governed by federal copyright law rather than state law, especially when original expression has been added during the re-mastering process."

steven_crighton@dailyjournal.com