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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
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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
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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
7403699 - ii -MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 - iii -MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 2MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
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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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7403699 3MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 4MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 5MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 6MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
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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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7403699 7MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 8MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
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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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7403699 9MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
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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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7403699 10MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 11MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 12MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
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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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7403699 13MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 14MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
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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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7403699 15MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
A Registered Limited Liability
Law Partnership IncludingProfessional Corporations
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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7403699 16MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGR X)
RELL & MANELLA LLP
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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.
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