ABS v CBS (CBS MSJ)

8/18/2019 ABS v CBS (CBS MSJ)

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7403699

MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENTCASE NO. 2:15-CV-6257-PA (AGR X)

RELL & MANELLA LLP

A Registered Limited Liability

Law Partnership IncludingProfessional Corporations

Robert M. Schwartz (SBN 117166)([email protected])

Victor Jih (SBN 186515)([email protected])

Andrew J. Strabone (SBN 301659)

([email protected])Amit Gressel (SBN 307663)([email protected])

IRELL & MANELLA LLP1800 Avenue of the Stars, Suite 900Los Angeles, California 90067-4276Telephone: (310) 277-1010Facsimile: (310) 203-7199

Attorneys for Defendants

CBS Corporation and CBS Radio Inc.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ABS ENTERTAINMENT, INC., anArkansas corporation, BARNABYRECORDS, INC., a California

corporation, BRUNSWICK RECORDCORPORATION, a New Yorkcorporation and MALACO, INC., aMississippi corporation, eachindividually and on behalf of all otherssimilarly situated,

Plaintiffs,v.

CBS CORPORATION, a Delawarecorporation; CBS RADIO INC., aDelaware corporation; and DOES 1through 10,

Defendants.

)))

))))))))))))))))

Case No. 2:15-cv-6257-PA (AGRx)

Case Filed: August 17, 2015

Trial Date: December 13, 2016

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEFENDANTS’ MOTION FORSUMMARY JUDGMENT OR, INTHE ALTERNATIVE, PARTIALSUMMARY JUDGMENT

Date: May 2, 2016

Time: 1:30 p.m.Place: Courtroom 15 – Spring St.Before: Hon. Percy Anderson

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 1 of 21 Page ID #:1066


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TABLE OF CONTENTS

Page

7403699 - i -MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT

CASE NO. 2:15-CV-6257-PA (AGR X)

RELL & MANELLA LLP



I. INTRODUCTION ................................................................................ 1

II.

BACKGROUND FACTS ..................................................................... 3

A.

The Limited Protection For Pre-1972 and Post-1972Sound Recordings. ...................................................................... 3

B. Plaintiffs Own Only Pre-1972 Sound Recordings. .................... 5

C.

CBS Did Not Perform Plaintiffs’ Pre-1972 SoundRecordings. ................................................................................. 7

III. CBS IS ENTITLED TO SUMMARY JUDGMENT. .......................... 8

A. Plaintiffs Cannot Show That CBS Broadcast Their

Sound Recordings. ...................................................................... 9

B. Plaintiffs Cannot Prevail On Any Post-1972 SoundRecordings CBS Broadcast. ....................................................... 9

1.

Post-1972 Sound Recordings Are Governed by Federal Law. ................................................................ 9

2.

CBS Did Not Perform Plaintiffs’ Pre-1972Recordings. ..................................................................... 13

a. Forensic Testing of Plaintiffs’Recordings and CBS’s Recordings

Confirms that They Are Not the Same. ............... 13

b.

The Forensic Testing Results AreConsistent With The Post-1972 HistoryOf Plaintiffs’ Recordings. .................................... 15

IV.

CONCLUSION. .................................................................................. 17



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TABLE OF AUTHORITIES

Page(s

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Cases

Batjac Prods, Inc. v. Goodtimes Home Video Corp.,160 F.3d 1223 (9th Cir. 1998) ....................................................................... 10

Capitol Records, LLC v. Sirius XM Radio, Inc.,2014 WL 7387972 (Cal. Super. Ct. Oct. 14, 2014) ........................................ 2

Celotex Corp. v. Catrett ,477 U.S. 317 (1986) ........................................................................................ 8

Fazio v. City and County of San Francisco,125 F.3d 1328 (9th Cir. 1997) ......................................................................... 8

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. 340 (1991) ................................................................................ 10, 17Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2014 WL 4725382 (C.D.

Cal. Sept. 22, 2014) ......................................................................................... 2

Griffin v. J-Records,398 F. Supp. 2d 1137 (E.D. Wash. 2005) ..................................................... 10

Leisek v. Brightwood Corp.,278 F.3d 895 (9th Cir. 2002) ........................................................................... 9

Maljack Prods., Inc. v. UAV Corp.,964 F. Supp. 1416, 28 (C.D. Cal. 1997) .................................................. 10, 11

Pryor v. Jean,2014 WL 5023088 (C.D. Cal., Oct. 8, 2014) .................................... 11, 12, 13

Statutes

Cal. Civ. Code § 980 .............................................................................................. 3, 7

California Business & Professions Code § 17200 ..................................................... 7

Fed.R. Civ. Proc. 56(a) .............................................................................................. 9

Other Authorities

Flo & Eddie v. Pandora, No. 15-55287, 2015 WL 5313052 (9th Cir. Sep. 9, 2015)(Amicus Brief of Computer & Communications IndustryAssociation) ..................................................................................................... 2

Flo & Eddie v. Pandora, No. 15-55287, 2015 WL 5313053 (9th Cir. Sep. 9, 2015)(Amicus Brief of Copyright and Intellectual Property LawProfessors) ....................................................................................................... 2



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Flo & Eddie v. Pandora, No. 15-55287, 2015 WL 5331515 (Amicus Brief of NationalAssociation of Broadcasters) ........................................................................... 2

Flo & Eddie v. Pandora, No. 15-55287, 2015 WL 5313054 (AmicusBrief of Yale Law School Information Society Project andAffiliated Scholars of Intellectual Property and Free ExpressionLaw) ................................................................................................................. 2

James J. Schneider, Defeating the Terminator: How Remastered Albums May Help Record Companies Avoid CopyrightTermination,53 B.C. L. Rev. 1889 (2012) ......................................................................... 10

Marc Myers, Behind the Remastering Boom,

THE WALL STREET JOURNAL, Dec. 14, 2012 ................................................... 5Melville B. Miller and David Nimmer, Nimmer on Copyright

§ 2.10[A][2] ............................................................................................. 10, 11

Noah Drake, Flo & Eddie, Inc.: Public Performance Rights for Pre-1972 Sound Recordings, 6 Calif. L. Rev. Cir., at 61 (2015) ........................... 2

Sound Recording Act of 1971,Pub. L. No 92-140, 85 Stat. 391 (1971) .......................................................... 4

Steve Gordon & Anjana Puri, The Current State of Pre-1972 Sound Recordings,

4 NYU J. Intell. Prop. & Ent. L. 1 (2015) ....................................................... 2Steve Guttenberg, Why Your Favorite Artists’ Recordings Could Have

Terrible Sound Quality, Dec. 26, 2015 ......................................................... 11

Tyler Ochoa, A Seismic Ruling on Pre-1972 Sound Recordings andState Copyright Law, Tech. & Mktg. L. Blog (Oct. 1, 2014) ......................... 2

U.S. COPYRIGHT OFFICE, FEDERAL COPYRIGHT PROTECTION FOR PRE-1972 SOUND R ECORDINGS: A R EPORT OF THE R EGISTER OFCOPYRIGHTS 6 (2011) ...................................................................................... 3

U.S. Copyright Office, Library of Congress, Circular No. 56, Copyright

Registration for Sound Recordings (2014) ......................................... 5, 12, 16



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7403699

MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENTCASE NO. 2:15-CV-6257-PA (AGR X)

RELL & MANELLA LLP



I. INTRODUCTION

This motion poses a narrow factual question that can and should dispose of

this case on summary judgment: Did defendants CBS Corporation and CBS Radio

Inc. (collectively “CBS”) publicly perform the sound recordings plaintiffs claim toown? As explained in the declarations of Dr. Durand Begault, an acoustic engineer

who submitted each of plaintiffs’ and CBS’s recordings to scientific testing, and

William Inglot, a Grammy-nominated producer who remastered almost all of the

recordings plaintiffs claim CBS played, the answer is an unequivocal “No.”

Dr. Begault and Mr. Inglot confirm that the original recordings plaintiffs

claim to own are not the same recordings CBS has in its audio files for use in

broadcasts. Dr. Begault summarizes his opinion as follows:

[T]he sound recordings of each of the performances that plaintiffs

claim to own are not the sound recordings that CBS used. That is the

case for all 57 of plaintiffs’ claimed songs whose recordings I

compared. In other words, CBS did not use any version of the sound

recordings that plaintiffs’ claim to own. Instead, CBS used different

versions of those sound recordings. Based on the results of these tests,

the versions that CBS has used are either: (1) “remastered” versions of

the sound recordings plaintiffs claim to own; (2) remastered versions of

previously-remastered, and thus different, versions of the sound

recordings plaintiffs claim to own; or (3) a completely different

performance than the sound recording plaintiffs claim to own.

See Declaration of Durand Begault, Ph.D., ¶ 16 (emphasis in original).

Plaintiffs filed this lawsuit on the theory that California law requires anyone

who wants to play a sound recording created before February 15, 1972—whether on

radio, in a restaurant, at home, or anywhere else—to purchase a license. The two



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decisions on which plaintiffs’ claim rests1 have generated wide criticism.

2 To

dispose of plaintiffs’ claims against CBS, however, there is no need for the Court to

reach the legal question posed by those cases. As plaintiffs’ counsel conceded at the

December 14, 2015 status conference, this motion’s fact

question—whether CBS played plaintiffs’ original pre-1972 sound recordings or new, post-1972 derivative

recordings—is potentially dispositive:

THE COURT: Because if these are new works, they’re going to

be covered by federal law—

MR. HADLEY: That’s correct, Your Honor.

THE COURT: —as opposed to state law, correct?

MR. HADLEY: Correct. And it’s our contention, of course, that

these are not new works.

Trans. of 12/14/15 Scheduling Conference at 9:22-10:2, Strabone Decl. Ex. 1.

Now that the parties have exchanged discovery on this issue and CBS has

forensically examined the parties’ sound recordings, plaintiffs cannot establish that

1

See Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2014 WL 4725382 (C.D. Cal. Sept.22, 2014) and Capitol Records, LLC v. Sirius XM Radio, Inc., 2014 WL 7387972(Cal. Super. Ct. Oct. 14, 2014).2 E.g., Steve Gordon, The Current State of Pre-1972 Sound Recordings, 4 NYU J.

Intell. Prop. & Ent. L. 336, at 347 (2015) (questioning “whether Judge Gutierrez’sdecision will be upheld” because it ignored clear legislative intent); Noah Drake,Flo & Eddie, Inc.: Public Performance Rights for Pre-1972 Sound Recordings, 6Calif. L. Rev. Cir., at 61, 66-67 (2015) (criticizing failure to consider legislativehistory); Tyler Ochoa, A Seismic Ruling on Pre-1972 Sound Recordings and StateCopyright Law, Tech. & Mktg. L. Blog (Oct. 1, 2014), avail. athttp://blog.ericgoldman.org/ (“Interpreting a state statute first enacted in 1872 to

provide such rights now, some 75 years later, will wreak havoc with existingcommercial practices” and “undo a 75-year-old consensus that state law does not provide a public performance right”). Numerous amici in the Ninth Circuit Pandoraappeal document the criticism. See Flo & Eddie v. Pandora, No. 15-55287, 2015WL 5313052 (9th Cir. Sep. 9, 2015) (Computer & Communications IndustryAssociation); id., 2015 WL 5331515 (National Association of Broadcasters); id.,2015 WL 5313054 (Yale Law School Information Society Project and AffiliatedScholars of Intellectual Property and Free Expression Law); id., 2015 WL 5313053(9th Cir. Sep. 9, 2015) (Copyright and Intellectual Property Law Professors).



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CBS played their pre-1972 sound recordings. It cannot be disputed that, whereas

plaintiffs possess sound recordings necessarily made before February 15, 1972, the

recordings CBS possesses are versions that were created many years after 1972—in

most cases, decades later—through labor-intensive remastering efforts that producednew works. Furthermore, plaintiffs have admitted in their interrogatory responses

that they have no personal knowledge of what recordings CBS publicly performed.

In fact, for many of the recordings identified in the complaint, plaintiffs must

concede they have no evidence (admissible or otherwise) that CBS ever publicly

performed any version of them. That is because there is no record anywhere of any

such performance. And for the recordings that plaintiffs do contest, the testimony of

CBS’s experts precludes any dispute that the recordings CBS played are not the

same pre-1972 recordings plaintiffs claim to own.

The remastered recordings that CBS possesses are subject to federal law,

which preempts any state law rights plaintiffs may have in their pre-1972

recordings. Under federal law, CBS has the right to perform post-1972 recordings

on terrestrial radio without payment, and to play them on digital platforms under a

statutory compulsory license. Based on these facts, and the governing law,

plaintiffs’ case should proceed no further.

II. BACKGROUND FACTS

A. The Limited Protection For Pre-1972 and Post-1972 Sound

Recordings.

Copyright protection for sound recordings fixed before February 15, 1972, to

the extent it existed at all, arose under a “patchwork of state protection.” U.S.

COPYRIGHT OFFICE, FEDERAL COPYRIGHT PROTECTION FOR PRE-1972 SOUND

R ECORDINGS: A R EPORT OF THE R EGISTER OF COPYRIGHTS (“U.S. Copyright Office

Report”) 6 (2011), Strabone Decl. Ex. 2. Some states followed the common law,

while some states, such as California, enacted statutes to codify that protection. See

Cal. Civ. Code § 980. In 1971, Congress extended federal copyright protection to



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sound recordings, but only those fixed on or after February 15, 1972. See Sound

Recording Act of 1971, Pub. L. No 92-140, 85 Stat. 391 (1971). Congress left

copyright protection for pre-1972 recordings to the states.

When pre-1972 sound recordings were created, generally they were fixed onmagnetic tape. These tracks were edited, and then consolidated into a single (for

mono) or dual (for stereo) track. This initial copy, upon which all future copies

would be based, is called the “master recording.” To commercially distribute such

recordings, record companies created copies of these masters and sent them to

replicating facilities, which would transfer the sound recording to the physical

format in which it would be distributed. As music storage technology evolved, the

relevant physical formats for the music industry evolved as well. To reflect this

change in storage technology, as well as the change in technology through which we

listen to music, many record companies have chosen to “remaster” their older sound

recordings. See generally Declaration of William Inglot, ¶¶ 3-5.

“Remastering” is the process of editing a sound recording through techniques

such as equalizing, balancing, and compression to capture the best elements of the

original performances and take full advantage of modern digital formats. Statement

of Undisputed Facts (“SUF”) ¶ 7. Sound engineers make creative decisions to

realize their ultimate vision for a particular recording. For example, a sound

engineer may decide a recording is best served through emphasis of the vocals, and

will reduce the low frequencies and raise the midrange of the recording to effect that

change. SUF ¶ 8. Similarly, if the ultimate product is intended for audiophiles and

collectors with high quality stereo systems, a sound engineer may choose to

emphasize bass or lower frequencies. Id . These decisions demonstrably impact a

listener’s experience.

The listening public has recognized the impact remastering can have on a

recording. “To repeat buyers of Johnny Cash, The Beatles, Miles Davis, The Beach

Boys, Glenn Gould, and many other iconic artists, ‘remastered’ signals that the



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original music has undergone a restoration process to upgrade the sound.” Marc

Myers, Behind the Remastering Boom, THE WALL STREET JOURNAL, Dec. 14, 2012,

http://www.wsj.com/articles/SB10001424127887324024004578171390737319744.

On the other hand, a poor remastering job can elicit equally strong opinions:The mastering engineer here definitely used too many of the tools athis disposal in an effort to enhance what was already on the mastertapes. Unfortunately removing the analog tape hiss (not that it wasexcessive to begin with anyway) removed the sense of life from theserecordings. And other processing REALLY screwed up some of thesesongs, causing the vocals to become an unfocused mess (I've heard thatthis is the result of an attempt to widen the stereo image). Do yourselfa favor and seek out the previous cd on the same label (unfortunatelyno bonus tracks there) or an import version on the Demon label.

“5 star album, 1 star mastering job,” http://www.amazon.com/Im-Still-Love-With-

You/dp/B000087DSN (last accessed February 19, 2016), Strabone Decl. Ex. 3.

The U.S. Copyright Office has confirmed that remastered and reissued pre-

1972 recordings are recognized as separate, derivative works under federal

copyright law, provided that the editing process was not merely mechanical. See

U.S. Copyright Office, Library of Congress, Circular No. 56, Copyright Registration

for Sound Recordings (2014) at 3-4, Strabone Decl. Ex. 4.

B. Plaintiffs Own Only Pre-1972 Sound Recordings.

There are four named plaintiffs in this action. ABS Entertainment, Inc.

(“ABS”) claims to be the owner of sound recordings by Al Green, Willie Mitchell,

Ace Cannon, and Otis Clay. Barnaby Records, Inc. (“Barnaby”) claims to be the

owner of sound recordings by Andy Williams, Johnny Tillotson, The Everly

Brothers, Lenny Welch, Ray Stevens, and The Chordettes. Brunswick Record

Corporation (“Brunswick”) claims to be the owner of sound recordings by Jackie

Wilson, The Chi-Lites, The Lost Generation, The Young-Holy Unlimited, and

Tyrone Davis. Malaco, Inc. (“Malaco”) claims to be the owner of sound recordings

by King Floyd, Mahalia Jackson, and The Cellos.



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In the operative pleading, the First Amended Complaint (“FAC”), plaintiffs

have identified 174 sound recordings that they claim to own. FAC, Sch. A1-A4.

These recordings were originally fixed before February 15, 1972. Since then,

however, the recordings have been remastered and reissued numerous times, oftenwith their own copyright registrations. For example:

• Public searches show that Tired of Being Alone by Al Green,

which ABS alleges to own, has been re-released at least 85 times since 1972.

See Tired of Being Alone, http://www.allmusic.com/song/tired-of-being-

alone-mt0033488774, (last accessed February 19, 2016).

• Bye Bye Love by The Everly Brothers, which Barnaby claims to

own, has been re-released at least 158 times since 1972. See The Everly

Brothers: Bye Bye Love, http://www.allmusic.com/song/bye-bye-love-

mt0011984624, (last accessed February 19, 2016). The album The Complete

Cadence Recordings 1957-1960, which includes Bye Bye Love and other

songs Barnaby claims to own such as Poor Jenny and (‘Til) I Kissed You,

states in its liner notes that it was “Digitally Remasted by Dan Hersch,

DigiPrep, Hollywood.” SUF ¶ 9.

• Can I Change My Mind by Tyrone Davis, which Brunswick

claims to own, has been re-released at least 56 times since 1972. See Tyrone

Davis: Can I Change My Mind , http://www.allmusic.com/song/can-i-change-

my-mind-mt0006432728, (last accessed February 19, 2016). The CD jacket

for the album 20 Greatest Hits, which includes Can I Change My Mind and

other Brunswick songs such as I Had It All The Time and Is It Something

You’ve Got , states in big bold letters that the album is “DIGITALLY

REMASTERED.” SUF ¶ 10.

• His Eye Is on the Sparrow by Mahalia Jackson, which Malaco

claims to own, has been re-released at least 32 times since 1972. See Mahalia

Jackson: His Eye Is on the Sparrow, http://www.allmusic.com/song/his-eye-



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is-on-the-sparrow-mt0000149160, (last accessed February 19, 2016). The

liner notes to the album Songs of Hope and Faith, which includes His Eye Is

on the Sparrow and other songs Malaco claims to own such as In the Upper

Room and

Silent Night , state that the album is a “digitally remastered

compilation.” SUF ¶ 11.

On August 17, 2015, ABS filed a putative class action against CBS alleging

copyright infringement in violation of California Civil Code § 980 (a)(2),

misappropriation, unfair business practices in violation of California Business &

Professions Code § 17200, and conversion.3 Plaintiffs filed the FAC on October 29,

2015 and added Barnaby, Brunswick, and Malaco as named plaintiffs. Paragraph 26

of the FAC alleges that:

With the advent of the digital age, some or all of the Recordings have

been “remastered” by mechanically taking the final mix of the sound

recording in its analog format and transferring it into a digital format

without remixing, resequencing or adding additional sounds.

In other words, plaintiffs acknowledge that the dispositive threshold issue is

whether any “remastered” or “reissued” recording is identical to the original pre-

1972 recordings plaintiffs claim to own. The parties have conducted discovery on

this issue and the undisputed evidence shows that: (1) in connection with the re-

release of plaintiffs’ sound recordings in digital formats, the recordings were

modified through numerous remastering processes; and (2) the recordings CBS has

for use in its broadcasts are not the original, pre-1972 recordings plaintiffs claim to

own, but post -1972, remastered versions.

C. CBS Did Not Perform Plaintiffs’ Pre-1972 Sound Recordings.

CBS delivers music content through broadcast radio channels, the Internet,

and mobile applications. FAC ¶ 2. Plaintiffs allege that CBS’s broadcast of their

3 On November 25, 2015, the Court struck plaintiffs’ class allegations.



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sound recordings via its radio stations and Internet streaming services without

permission and payment violates their public performance right. FAC ¶ 4.

Plaintiffs also allege that the copies CBS makes to broadcast and stream songs

violate their reproduction, distribution, and other exploitation rights. FAC ¶ 33.CBS did not perform any of plaintiffs’ pre-1972 sound recordings in the last

four years. As an initial matter, for the vast majority of the songs plaintiffs have put

at issue, there is no record anywhere even suggesting that CBS may have played the

song. SUF ¶ 6. Moreover, CBS simply does not play pre-1972 sound recordings.

SUF ¶ 12. To the best of CBS’s knowledge, CBS plays only post-1972 digital

sound recordings that have been reissued or remastered. Id . CBS maintains in its

storage systems a digital file containing each sound recording it plays. For each

song whose recording plaintiffs claim to own, CBS has given plaintiffs that file.

As noted above, CBS hired a forensic acoustic engineer, Dr. Durand Begault,

to compare the recordings in CBS’s storage systems to the pre-1972 sound

recordings plaintiffs claim to own. He has concluded that, without exception, they

are different recordings. SUF ¶ 13.

III. CBS IS ENTITLED TO SUMMARY JUDGMENT.

As the Court has acknowledged, a dispositive threshold issue in this case is

whether CBS actually played plaintiffs’ pre-1972 recordings, as opposed to new

works that are protected under federal Copyright law as derivative works. See

Trans. of 12/14/15 Scheduling Conference at 11:12-14, Strabone Decl. Ex. 1.

To prevail on their claims, plaintiffs must establish—for each song—that:

(1) CBS played a recording of the song and, if it did, (2) that sound recording is the

pre-1972 recording plaintiffs claim to own. Once CBS has “pointed out” the

deficiencies in plaintiffs’ claims, plaintiffs have the burden of showing “significant

probative evidence” in support of their claims. Celotex Corp. v. Catrett , 477 U.S.

317, 325 (1986); Fazio v. City and County of San Francisco, 125 F.3d 1328, 1331

(9th Cir. 1997). If plaintiffs cannot meet that burden, CBS is entitled to summary



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judgment under FRCP 56(a). Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th

Cir. 2002). As demonstrated below, there is no evidence supporting plaintiffs’

claims that CBS publicly performed their sound recordings.

A.

Plaintiffs Cannot Show That CBS Broadcast Their SoundRecordings.

For the vast majority of the songs plaintiffs have put at issue in this litigation,

plaintiffs have no basis for claiming that CBS publicly performed them. There is no

record of those songs ever being performed, let alone accessed by listeners in

California. CBS has produced playlist records for its Internet streaming service for

the previous four years. For its terrestrial radio service, no playlist records exist.4

Even if reports from third-party services, such as Mediabase, were reliable and

admissible,5 those reports show no record of CBS playing those songs in the last

four years. SUF ¶ 6. Because plaintiffs have the burden of proof, CBS is entitled to

summary judgment for each sound recording identified in the FAC unless plaintiffs

come forward with admissible evidence that CBS performed it.

B. Plaintiffs Cannot Prevail On Any Post-1972 Sound Recordings

CBS Broadcast.

1. Post-1972 Sound Recordings Are Governed by Federal Law.

It is not enough for plaintiffs to show that CBS publicly performed a

recording with merely the same title and artist as a pre-1972 sound recording that

4 Although CBS is required by law to keep playlist records of its Internet streamingfor purposes of royalty payments, it is not required to do so for terrestrial broadcasts

5 Mediabase is a third-party service that created logs of what radio stations play byhaving its employees listen to over-the-air “skim” tapes (cassettes containing sevenseconds for every two minutes of air play). CBS does not know how Mediabasecurrently creates its logs, but understands that it depends on a “human element”involving lay persons who identify the songs they think they are hearing on theradio. “Radio’s Most Innovative: Mediabase/Rich Meyer,” JACOBLOG, Sept. 5,2014, http://jacobsmediablog.com/2014/09/05/radios-most-innovative-mediabaserich-meyer. Nor does CBS know whether listeners attempt to distinguishthe original vs. remastered versions of a song, much less, log such distinctions.



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plaintiffs claim to own. It matters whether CBS played the original pre-1972 sound

recording or whether CBS played a post -1972 version of that recording. The

copyright in a sound recording attaches to the specific “aural version of such work

as fixed on [a] material object.” 1 Melville B. Miller and David Nimmer, Nimmer on

Copyright § 2.10[A][2]. The exclusive right in a sound recording is limited to the

right to “duplicate the sound recording in the form of phonorecords or copies that

directly or indirectly recapture the actual sounds fixed in the recording.” 17 U.S.C.

§ 114(b). Owners of copyrighted sound recordings are therefore “largely limited to

proceeding against the tape or record ‘pirate’ who without permission makes a

reproduction of the actual sounds in a protected recording.” Griffin v. J-Records,

398 F. Supp. 2d 1137, 1142 (E.D. Wash. 2005). It matters which sound recording

CBS played.

Federal copyright law protects remastered sound recordings as derivative

works, provided that they possess a minimal degree of creativity that differs from

the original. See Maljack Prods., Inc. v. UAV Corp., 964 F. Supp. 1416, 1426, 28

(C.D. Cal. 1997), aff’d sub nom. Batjac Prods, Inc. v. Goodtimes Home Video

Corp., 160 F.3d 1223 (9th Cir. 1998). “The vast majority of works make the grade

quite easily, as they possess some creative spark, no matter how crude, humble or

obvious it might be.” Maljack , 964 F. Supp. at 1426 (citing Feist Publ’ns, Inc. v.

Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)). “[T]hus, the degree of originality

required to create a copyrightable derivative work is low.” Id .

The actual steps and end result of remastering a given sound recording

depend on numerous factors specific to that song. Producers and sound engineers

make creative decisions to produce the best possible remaster. See James J.

Schneider, Defeating the Terminator: How Remastered Albums May Help Record

Companies Avoid Copyright Termination, 53 B.C. L. Rev. 1889, 1902 (2012); SUF

¶ 8. These decisions are guided by the participants’ aesthetic sense and technical

expertise. Id . Sound recordings are remastered with different goals, based on the



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expected format and eventual use of the final product. For example, the way a

sound recording is engineered may depend on whether the recording will be released

on CD or as a digital download:

Sound quality is highly subjective, but one thing’s for sure, no one sets

out to make a bad recording. Same for remastered recordings: Noengineer would intentionally make a recording sound worse, but they

will make one that sounds different than the original since today’s

listeners are likely to use mobile devices as their primary players.

See Steve Guttenberg, Why Your Favorite Artists’ Recordings Could Have Terrible

Sound Quality, Dec. 26, 2015, http://www.cnet.com/news/why-favorite-artists-

bands-recordings-cd-mp3-could-sound-bad/ (emphasis in original); SUF ¶ 14. The

recording that results from the remastering process can constitute a derivative work:

In some cases, the editing of a previously recorded work may in itself involvesuch originality as to command copyright, as where it involves such acts asequalizing, changing the highs and lows, providing more bass and treble,adding echo, or abridging by making discretionary and not obvious internalcuts…

Pryor v. Jean, 2014 WL 5023088 at *4 (C.D. Cal. Oct. 8, 2014) (quoting 1 Melville

B. Miller and David Nimmer, NIMMER ON COPYRIGHT § 2.10 [A][2][b]).

Judge Pregerson analyzed this issue in Maljack .6

There, the Court held that

“sound enhancements” to a sound recording that “upgrade[] the quality of the

sound” are sufficient to provide a new sound recording with federal copyright

protection as a derivative work. Maljack , 964 F. Supp. at 1428. In 1993, the

plaintiff had digitized the soundtrack of a 1963 movie and, when doing so,

remastered the soundtrack through a “creative mixing and balancing of sounds.” Id .

The Court held that 17 U.S.C. § 114(b) “explicitly recognizes that a ‘derivative

work in which the actual sounds fixed in the sound recording are rearranged,

6 Judge Pregerson’s other holding in Maljack , that an edited “pan and scan” version

of a motion picture was a derivative work, also highlighted the low bar fororiginality. See id . at 1427-8. The Court held that the editor’s “artistic decisions”made “sufficiently original” changes to the motion picture. Id . at 1428. Thus, the pan and scan version was afforded copyright protection as a derivative work. Id.



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remixed or otherwise altered in sequence or quality’ is a protectable new work.” Id.

The U.S. Copyright Office has confirmed that “remastered” sound recordings

are protected as derivative works under federal copyright law, as long as there are

differences that reflect minimal originality. As it explained in its Circular No. 56:

Copyright Registration for Sound Recordings:

Examples of derivative sound recordings that generally can be

registered include the following:

• a remix from multitrack sources

• a remastering that involves multiple kinds of creativeauthorship, such as adjustments of equalization, sound editing,

and channel assignment.

Mechanical changes or processes applied to a sound recording, suchas a change in format, de-clicking, and noise reduction, generally donot represent enough original authorship to be registered.

Id. at 3-4, Strabone Decl. Ex. 4.

CBS is entitled to prevail on plaintiffs’ state law copyright claims if CBS

publicly performed post-1972 derivative works that are subject to federal copyright.

The fact that the derivative work incorporates the original pre-1972 sound

recordings does not change the outcome. Judge Pregerson addressed a similar

situation in Pryor v. Jean, No. CV13-02867 DDP, 2014 WL 5023088 (C.D. Cal.,

Oct. 8, 2014). The case concerned a 1974 recording by David Pryor. Id. at *1. He

later authorized a record company to remaster and reissue the song, which it did in

1975. Id. Years later, the record company granted a license to Jean (and others) to

copy the remastered recording for use in movies and television programs. Pryor’s

heirs sued, claiming that the license from the record company was insufficient. Id.

The Court dismissed the claims because the defendants did not use the 1974 sound

recording; instead, they used the 1975 remastered sound recording. Id. at *10-11.

The Court did so despite plaintiffs’ allegation that the remastered recording was “a

literal copy” of and necessarily contained the original 1974 recording (id. at *1 n.1):



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Plaintiffs have the exclusive right to duplicate, rearrange, or remix the“actual sounds” of the [original] record. Defendants did not doanything with those “actual sounds.” Rather Defendants used licensed“actual sounds” from the [reissued] record.

Id. at *4. The court refused to permit the plaintiffs to leverage any interest they had

in the original recording to constrain defendants’ use of the remaster.

As explained in the next section, and as with the defendants in Pryor , CBS

never played the “actual sounds” from plaintiffs’ original pre-1972 sound

recordings. Instead, CBS played the “actual sounds” from reissued or remastered

versions that were created long after 1972. Plaintiffs cannot assert any California

copyright protection that they may have in a pre-1972 recording to constrain CBS’s

use of a post-1972 recording, whose rights are governed solely by federal law.

2. CBS Did Not Perform Plaintiffs’ Pre-1972 Recordings.

The parties have produced to one another all of the relevant sound recordings

they possess. Plaintiffs produced copies of what they contend are their original pre-

1972 “master” recordings. CBS produced copies of the sound recordings located in

its storage systems for each radio station at issue and for its Internet service. The

evidence confirms that CBS did not play plaintiffs’ recordings.a. Forensic Testing of Plaintiffs’ Recordings and CBS’s

Recordings Confirms that They Are Not the Same.

CBS engaged Dr. Durand Begault, an acoustic engineer, to forensically

compare plaintiffs’ sound recordings to the recordings CBS has of the same songs.

As detailed in Dr. Begault’s declaration, CBS could not have played any of

plaintiffs’ sound recordings because plaintiffs’ recordings and CBS’s recordings of

those songs are not the same. For each sound recording at issue in this case—

plaintiffs’ version of the song and the versions CBS used—Dr. Begault measured

and then compared four objective criteria:

1. Timbre: “Timbre” is what causes a particular musical sound to

be perceived as different from another musical sound, even when the two



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sounds have the same pitch and loudness. To objectively measure timbre, Dr.

Begault used recognized methods to analyze the Long Term Average

Spectrum of each recording.

2. Spatial Imagery: This refers to “where” the listener perceivesthe sounds of the vocals, instruments, and other elements of a recording to be

coming from, in terms of left vs. right and front vs. rear. To objectively

measure spatial imagery, Dr. Begault analyzed left-right channel correlation

using a vectorscope.

3. Sound Balance: This refers to how the audio actually sounds to

the listener’s ears, i.e., its perceived loudness. When measured over the entire

length of a sound recording, different versions will have different loudness

“histories.” To objectively measure the loudness histories of each of the

sound recordings at issue in the case, Dr. Begault applied a methodology

corresponding to an established broadcasting industry standard.

4. Loudness Range: This refers to a numerical measurement (in

decibels) of the range in loudness of a recording. Using methods similar to

those Dr. Begault applied to measure Sound Balance, he calculated this

measure for each recording. As he explains, if two recordings of a given song

are the same, the loudness ranges will necessarily be the same.

See Begault Decl. ¶¶ 29, 32, 40, 47-48, and 58-59.

These four objective characteristics are recognized within the field of

acoustics as relevant indicia that allow one experienced in the field to evaluate the

similarity or dissimilarity of any two sound recordings. SUF ¶ 15.

Using these objective tests, Dr. Begault confirmed that “CBS did not use any

version of the sound recordings that plaintiffs’ claim to own.” SUF ¶ 13. None of

plaintiffs’ recordings matched CBS’ recordings.

For example, the recording of That’s How It Is (When You’re In Love) by Otis

Clay that CBS played differs significantly from plaintiffs’ original master in all four



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categories: timbre, spatial range, sound balance, and loudness range. SUF ¶¶ 34-35.

Dr. Begault’s forensic analysis also shows that the mastering engineer who worked

on CBS’s recording emphasized high frequencies. Id . Similar differences exist

between each of the recordings plaintiffs claim to own and the CBS versions of

those recordings. SUF ¶¶ 20-182.

b. The Forensic Testing Results Are Consistent With The

Post-1972 History Of Plaintiffs’ Recordings.

There exists a substantial public record of the post-1972 treatment of the

sound recordings plaintiffs claim to own. One need only navigate to Amazon.com

or any number of other music sites to discover the existence and production details

of the many post-1972 versions of plaintiffs’ recordings. A common thread that ties

at least 46 recordings plaintiffs claim to own is that noted record producer and

engineer William Inglot was responsible for creating remastered versions of those

recordings, long after 1972.

Mr. Inglot has worked as a producer, sound engineer, and archivist. He has

personally overseen and produced over 1,000 album releases. From 1982, when the

CD format was released, until 2007, Mr. Inglot worked at Rhino Entertainment, a

company that produces and releases recorded music from scores of artists. There he

developed an expertise in producing remastered versions of sound recordings

originally recorded in the 1950s, 60s, and 70s, including, as detailed in his

declaration, remastered versions of at least 46 songs at issue in this case.

Mr. Inglot is highly regarded in the music industry for his sound engineering

abilities and experience. Online forums have recognized his unique talent. See

Steve Hoffman Music Forums topic “All Hail Dan Hersch & Bill Inglot @

Digiprep” (last accessed February 29, 2016), Strabone Decl. Ex. 5. Mr. Inglot is

highly sought after and praised because he did not approach the task of remastering

these recordings in a mechanical manner. These efforts make a difference in how a

remaster is perceived by the listening public. Several reviewers noted regarding Mr.



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Inglot’s work on several of the sound recordings plaintiffs have put at issue in this

case:

• “This is a great CD, with all the old favorites remastered and [sounds] soclear. I heard things in the music that I had never heard before on vinyl.”

See Amazon.com reviews of The Fabulous Style of The Everly Brothers,(last accessed February 23, 2016), Strabone Decl. Ex. 6.

• “The sound quality is excellent ... these will replace a lot of weaker digitaltransfers.” See Amazon.com reviews of In Yo' Face! The History of Funk

(last accessed February 23, 2016), Strabone Decl. Ex. 7.

• “The sound quality is pristine, so you get to [hear] the great four-partharmonizing made famous by the group on such classics as Have You Seen

Her and Oh Girl.” See Amazon.com reviews of Chi-Lites Greatest Hits,

(last accessed February 23, 2016), Strabone Decl. Ex. 8.

In his declaration, Mr. Inglot describes the steps he personally undertook to

create new, remastered versions of the songs at issue here. See Inglot Decl., ¶¶ 31-

52. He confirms the originality and creativity that went into remastering each one.

For example, on Heartaches & Harmonies, a 1994 album by The Everly Brothers

that includes Bye Bye Love, Bird Dog, Poor Jenny, and Til I Kissed You, all of

which plaintiffs have put at issue, Mr. Inglot made scores of equalization

adjustments at numerous frequencies and modified loudness profiles, among other

things, to create a new and distinct version of each song. SUF ¶ 16.

These differences between the recordings—both as objectively measured by

Dr. Begault and as explained by Mr. Inglot—are not the result of what the Copyright

Registrar refers to as merely “mechanical changes or processes … such as a change

in format, de-clicking, and noise reduction”; instead, they reflect “multiple kinds of

creative authorship, such as adjustments of equalization, sound editing, and channel

assignment.” See Copyright Circular No. 56 at 3-4, Strabone Decl. Ex. 4.

Moreover, plaintiffs cannot dismiss these differences as legally de minimis. As

discussed above, very little originality is needed to create a derivative work. See



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Feist , 499 U.S. 340, 345 (1991) (“To be sure, the requisite level of creativity is

extremely low; even a slight amount will suffice.”).

It is telling that, in some cases, CBS has several different remastered versions

of the same pre-1972 recording. SUF ¶ 17. This confirms that the differences between the original recording and the remastered version are not the inevitable

result of converting to the CD format or mere de-clicking and noise reduction.

Instead, these differences show the dozens of discretionary judgments that sound

engineers made during the remastering process, and explain how two engineers can

remaster the same recording in different ways. SUF ¶ 18.

IV. CONCLUSION.

The evidence establishes that CBS did not play any of plaintiffs’ pre-1972

recordings. Accordingly, the Court should grant summary judgment in favor of

CBS. Alternatively, the Court should grant partial summary judgment in favor of

CBS as to each of the 57 songs at issue in the case for which plaintiffs fail to meet

their burden of creating a triable issue of fact over whether CBS performed the

version of that song plaintiffs’ claim to own.

Dated: February 29, 2016 Respectfully submitted,

ROBERT M. SCHWARTZVICTOR JIHANDREW J. STRABONEAMIT GRESSELIRELL & MANELLA LLP

By:Robert M. Schwartz

Attorneys for DefendantsCBS Corporation and CBS Radio Inc.


Documents

ABS v CBS (CBS MSJ)