ABS Entertainment, Inc. v. CBS Corporation, et al.


This article relates to an interesting summary judgment passed by the District Court of California in a suit brought for copyright infringement.  The Plaintiffs, ABS Entertainment Inc., Barnaby Records, Inc., Brunswick Record Corporation, and Malaco Inc. (collectively addressed as “Plaintiffs”) brought a copyright infringement suit against CBS Corporation and CBS Radio Inc. (collectively addressed as “CBS” or “Defendants”) for publicly performing, through radio broadcasts or digital internet streams, the Plaintiffs’ pre-1972 sound recordings.

It is necessary to state the history of copyright protection for sound recordings in the US to understand the decision in the instant case. Sound recordings became eligible for federal copyright protection in 1971, when Congress amended the scope of the Copyright Act to cover sound recordings fixed after February 15, 1972 under the Sound Recording Act of 1971. In doing so, Congress expressly reserved protection of sound recordings fixed prior to that date to each individual state. The Federal law comprehensively governs the circumstances in which broadcasters are required to pay for the public performance of a post-1972 sound recording. Terrestrial broadcasters need not pay any fees for broadcasting post-1972 sound recordings, while non-interactive digital transmitters are statutorily granted a compulsory license which requires the transmitter to make payments to SoundExchange, an entity which collects and distributes royalties collected from such licenses.

ABS filed a class action complaint against CBS, alleging that CBS was publicly performing ABS’s pre-1972 sound recordings in violation of California state law. The court while deciding on the allegation considered various issues. The Court held that the Plaintiffs had not introduced sufficient evidence and therefore failed to create a genuine dispute of the material fact that CBS had publicly performed 126 of Plaintiffs’ works. Accordingly, CBS is entitled to summary judgment.

The court partly agreed to the Plaintiffs claim that they retain their common law rights in their pre-1972 Sound Recordings which are embedded in the derivative works performed by CBS, while it disagreed with the Plaintiffs’ further conclusion that this results in CBS having infringed Plaintiffs’ copyrights. The Court further stated that the relevant question is whether CBS had the right to perform the remastered, post-1972 sound recordings.
The Court concluded that, under federal law, CBS has the right to perform post-1972 sound recordings on terrestrial radio without payment. The Court further stated that CBS can perform such music through digital platforms under a statutory compulsory license and there was no allegation that CBS has failed to comply with any of its royalty payment under the federal law. As a result, the court concluded that, CBS has only played sound recordings which it had the right to use. The court also recognized that, the Plaintiffs’ pre-1972 Sound Recordings had undergone sufficient changes during the remastering process to qualify for federal copyright protection, and, therefore, subject to federal copyright law, which pre-empted the state law claims in the case.

This judgment, may act as a reference to radio operators on how to publicly perform older works without liability.


Authored by Bhuvana S. babu

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