Irell Beats Pre-1972 Copyright Case for CBS with Novel Argument

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May 2016

Irell & Manella LLP won a summary judgment ruling for CBS dismissing a closely watched case brought by ABS Entertainment involving the radio broadcast of pre-1972 sound recordings. ABS sued CBS in September 2015 claiming that CBS had no right to air sound recordings made before 1972 without obtaining a license from the record companies that own the recordings.

CBS is one of several companies to be sued over the last few years for not paying royalties for performance rights to the owners of pre-1972 songs, which are protected by state laws since federal copyright protection didn't begin until 1972. Judges in both New York and California have issued rulings that those states' laws require radio stations to pay royalties. Other defendants have paid hefty settlements in recent years.

CBS hired Irell after the suit was filed. The team, led by Bobby Schwartz and Victor Jih, advanced a novel argument that none of the other defendants have raised, which is that CBS wasn't playing the original pre-1972 recordings. Rather, it played versions that were remastered years later, using technology that changed and improved the sounds. The remastered versions have a new federal copyright, which eliminates any state law protection.

In the decision, U.S. District Court Judge Percy Anderson of the Central District of California agreed with the firm's argument, relying on the testimony of two CBS experts, and dismissed the case.

Irell is also representing CBS in New York federal court, where the firm has a similar motion pending and fully briefed in a separate case brought by ABS.

In addition to Schwartz and Jih, the team included Andrew Strabone, Amit Gressel and Adam Shapiro. The case is ABS Entertainment v. CBS Corporation and CBS Radio (C.D. Cal.).

For more, see articles in The Hollywood Reporter and Law360 (registration required) on the win.