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CBS Radio Has Novel Argument to Legal Demand to Stop Playing Pre-1972 Songs

These past couple of years, the broadcast industry has been unsettled by word that stations might not have an unfettered right to publicly perform pre-1972 sound recordings. The concern heightened…

These past couple of years, the broadcast industry has been unsettled by word that stations might not have an unfettered right to publicly perform pre-1972 sound recordings. The concern heightened after a judge shocked much of the industry by giving Flo & Eddie of The Turtles a win in a lawsuit against SiriusXM for playing hit songs like “Happy Together” and “It Ain’t Me Babe,” authored before sound recordings fell under federal copyright law.

Since that ruling in September 2014, there have been various follow-up lawsuits including one from ABS Entertainment, which owns the recordings of Al Green, among others, against CBS Radio, iHeartMedia and Cumulus — the nation’s three largest terrestrial radio station operators. The lawsuit asserts violations of state laws and demands that the defendants stop publicly performing their works without license.

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On Tuesday, CBS Radio filed a motion to strike the complaint and are bringing a new argument in this controversy.

The radio giant says that it doesn’t perform ABS’ pre-1972 recordings. What?, you say. No Al Green song has been played on the radio these past few years? Not exactly.

“CBS does not play vinyl sound recordings,” states a memorandum filed in California federal court. “In fact, every song CBS has played in the last four years has been a post-1972 digital sound recording that has been re-issued or re-mastered. For example, ‘Tired of Being Alone’ is found on UMG’s 2006 The Best of Al Green compilation. That CD contains the re-mastered version of the song created and registered for copyright in 2000. The ‘Let’s Stay Together’ recording CBS played is the 2003 re-mastered sound recording as re-issued in 2009 by Fat Possum Records.”

Plaintiffs will surely argue this doesn’t matter, that the derivatives are protected under California law as well, but CBS asserts otherwise — that copyright attaches to the specific aural version of a work and what radio audiences are hearing are “actual sounds” coming from re-mastered versions. If the theory holds, and the new works are covered by federal copyright law, it would mean there’s only a limited public performance right for the digital sound recordings, subject to a compulsory license.

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CBS’ legal brief (read here) also aims to rehash the arguments that sound recordings have long been broadcast on radio stations without restriction, that record companies have recognized this by attempting to lobby Congress to change the law by requiring a license for the performance of such recordings and that California common law copyrights prevents unauthorized copying but not performance.

In the Flo & Eddie case, a federal judge came to a different conclusion on that latter point by examining a 1982 California law addressing pre-1972 recordings and determining that because it said something about cover songs but was silent with respect to performance, the “legislature did not intend to further limit ownership rights, otherwise it would have indicated that intent explicitly.”

Represented by Robert Schwartz, who worked on that case for SiriusXM until he switched law firms, CBS basically asks for a different conclusion. 

Judges don’t ignore precedent, so perhaps there’s some legal gamesmanship happening. In the Flo & Eddie case, SiriusXM was later denied a motion for an interlocutory appeal — meaning one that would occur before trial — but CBS Radio is attempting to have its own arguments decided on a motion pursuant to California’s SLAPP law, which is meant to deter the use of courts to impede one’s First Amendment rights. One important if less known aspect of California’s SLAPP law is an automatic right to appeal a denial of a motion to strike.

In other words, CBS could be thinking out its chess moves by sacrificing a pawn in order to advance its rook. Getting an appeals court to weigh in on what California law says about pre-1972 sound recordings would be particularly significant given that over on the East Coast, the 2nd Circuit Court of Appeals will consider what New York law has to say about the topic.  If the appellate courts come to different conclusions, this could help set up a showdown at the U.S. Supreme Court.

This article was originally published by The Hollywood Reporter.