LOS ANGELES (CN) – CBS may yet sing the blues, after the Ninth Circuit on Monday revived a copyright lawsuit against the radio giant over its broadcast of classic songs by Al Green, Elvis Presley, Frank Sinatra, the Turtles and many more without a license.
The matter stems from a 2015 lawsuit filed by several copyright holders of a catalog of oldies but goldies, claiming CBS and two other radio companies were “unlawfully transmitting” remastered versions of songs originally recorded before Feb. 15, 1972, over the radio, internet and mobile devices without licenses or consent.
Sound recordings made after the 1972 date are protected by federal copyright law. CBS says the pre-1972 songs spinning at its radio stations are recent remasters, and the act of remastering brought the hits under the scope of federal law and not by states’ laws as is claimed by the original copyright holders.
ABS Entertainment, Barnaby Records, Brunswick Record Corp. and Malaco also brought class actions against iHeartMedia and Cumulus in separate lawsuits.
But in a series of setbacks for the copyright holders, a federal judge in Los Angeles granted summary judgment for CBS, finding any state copyright interests the rights holders may have is pre-empted by federal law since the records CBS spins at its stations are remastered.
On appeal to the Ninth Circuit, CBS argued the remasters were not just analog to digital transfers, but entirely new recordings created by an engineer. Hence, the media giant said, federal copyright law controls.
But on Monday, the Ninth Circuit vacated summary judgment. Instead, the three-judge panel found triable issues of fact as to whether the recordings were – as CBS claims – derivative works subject only to federal copyright law.
In Monday’s opinion, U.S. Circuit Judge Richard Linn, sitting by designation from the Federal Circuit, called CBS’ position “directly contrary to both established precedent and the statutory scheme.”
“Under long-standing principles of copyright law, rights in an underlying work and derivative work are distinct, and the holder of a copyright in an underlying work retains that right in the content of the derivative work sourced from the underlying work,” Linn, a Bill Clinton appointee, wrote for the panel.
He added: “CBS is incorrect that ‘the only sound recordings CBS broadcast were the remastered sound recordings, which were created long after 1972.’ The broadcast of the remastered sound recording also broadcast the pre-1972 sound recording therein embodied, just as it also broadcast the underlying musical composition. Regardless of the remastering engineers’ alterations, the sounds fixed in the remastered sound recording include those performed and fixed before 1972.”
The panel also found the trial court’s exclusion of a declaration by ABS’ expert as unscientific was not adequately explained and may have been in error since the expert’s declaration was a response to CBS’ expert.
Finally, the panel ruled the trial court’s strict adherence to the Central District of California’s 90-day limit to file for class certification is proof why the federal rule of flexibility makes more sense and shouldn’t have been tampered with by the Central District – particularly since both sides agreed ABS should have been given more time.
The panel remanded the case for further proceedings. CBS and ABS did not return emails requesting comment by press time.
U.S. Circuit Judges Marsha Berzon and Paul Watford rounded out the panel.