Ninth Circuit Remands Golden Oldies Copyright Case

By Jenna Greene August 21, 2018 Two years ago, lawyers from Irell & Manella notched one And that’s where CBS fell short. of those too-good-to-be-true wins. “A remastering, for example, of Tony Bennett’s ‘I Left Based on a novel theory, they convinced a federal judge My Heart in San Francisco’ recording from its original ana- in Los Angeles to dismiss a potentially massive copy- log format into digital format, even with declicking, noise right class action against CBS Corp. and CBS Radio on reduction and small changes in volume or emphasis, is no summary judgment. less Bennett’s ‘I Left My Heart in San Francisco’ record- It was nice while it lasted, but on Monday, the U.S. ing—it retains the same essential character and identity as Court of Appeals for the Ninth Circuit in no uncertain the underlying original sound recording, notwithstanding terms reversed and remanded just about every piece of the the presence of trivial, minor or insignificant changes from decision by Judge Percy Anderson. the original,” he wrote, with Judges Marsha Berzon and CBS was sued in 2015 by four record companies that own Paul Watford concurring. “That is so even if the digital pre-1972 sound recordings by artists such as Al Green, the version would be perceived by a listener to be a brighter or Everly Brothers, Andy Williams, Jackie Wilson and The cleaner rendition.” Chi-Lites. (Under the Sound Recording Act, sound record- The remasters, Linn continued, “lacked the originality nec- ings fixed after February 15, 1972, are subject to a different essary to support copyright protection as derivative works.” regime that’s not in dispute here.) The record companies—ABS Entertainment Inc., Represented by McKool Smith, the companies said CBS Barnaby Records, Brunswick Record Corp. and Malaco had no right to air the pre-1972 recordings without obtain- Inc.—were represented by McKool’s Robert Allen, who ing a license from them. handled the oral argument, as well as Alan Block, Roderick But Irell lawyers responded that the recordings used for Dorman and Lawrence Hadley. Chicago’s Miller Law was radio broadcast were not actually the originals. Rather, co-counsel. they said, their client was playing new, remastered ver- The case also attracted significant amicus interest. sions of those recordings, covered by a new federal copy- The Recording Industry Association of America, right. Therefore, the plaintiffs’ state law-based claims were represented by Cowan Liebowitz & Latman, backed eliminated. the record companies, as did the California Society So … no. of Entertainment Lawyers, represented by Gerard Fox The Ninth Circuit panel focused on whether a remas- Law and Lowe and Associates. Sound recording owner Flo tered sound recording could be eligible for independent & Eddie Inc., with counsel from Susman Godfrey and copyright protection. The only way that could happen is Gradstein & Marzano, was also on the record companies’ if the “essential character and identity” of the recordings side. distinguish them from the underlying work, wrote Judge The National Association of Broadcasters, represented Richard Linn, sitting by designation from the U.S. Court by Paul Hastings, supported CBS, as did iHeartMedia, with of Appeals for the Federal Circuit. counsel from Latham & Watkins.

Reprinted with permission from the AmLaw LITIGATION Daily featured on August 21, 2018 © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or [email protected]. # 002-08-18-07