Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 1 of 21 Page ID #:1066

1 Robert M. Schwartz (SBN 117166)
(rschwartz@irell.com)
2 Victor Jih (SBN 186515)
(vjih@irell.com)
3
Andrew J. Strabone (SBN 301659)
4
(astrabone@irell.com)
Amit
Gressel (SBN 307663)
5
(agressel@irell.com)
6 IRELL & MANELLA LLP
1800 Avenue of the Stars, Suite 900
7 Los Angeles, California 90067-4276
8 Telephone: (310) 277-1010
Facsimile: (310) 203-7199
9
10 Attorneys for Defendants
CBS Corporation and CBS Radio Inc.
11
12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14
15 ABS ENTERTAINMENT, INC., an
Arkansas corporation, BARNABY
16 RECORDS, INC., a California
17 corporation, BRUNSWICK RECORD
CORPORATION, a New York
18 corporation and MALACO, INC., a
19 Mississippi corporation, each
individually and on behalf of all others
20 similarly situated,
21

Plaintiffs,
v.

22

23 CBS CORPORATION, a Delaware
24 corporation; CBS RADIO INC., a
Delaware corporation; and DOES 1
25 through 10,
26

Defendants.

27

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Case No. 2:15-cv-6257-PA (AGRx)
Case Filed: August 17, 2015
Trial Date: December 13, 2016
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, PARTIAL
SUMMARY JUDGMENT
Date:
Time:
Place:
Before:

May 2, 2016
1:30 p.m.
Courtroom 15 – Spring St.
Hon. Percy Anderson

28
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 2 of 21 Page ID #:1067

TABLE OF CONTENTS

1

Page

2
3

I.

INTRODUCTION ................................................................................ 1

4

II.

BACKGROUND FACTS ..................................................................... 3

5
6
7

A.

The Limited Protection For Pre-1972 and Post-1972
Sound Recordings. ...................................................................... 3

B.

Plaintiffs Own Only Pre-1972 Sound Recordings. .................... 5

C.

CBS Did Not Perform Plaintiffs’ Pre-1972 Sound
Recordings. ................................................................................. 7

8
III.

9

CBS IS ENTITLED TO SUMMARY JUDGMENT. .......................... 8
A.

Plaintiffs Cannot Show That CBS Broadcast Their
Sound Recordings. ...................................................................... 9

B.

12

Plaintiffs Cannot Prevail On Any Post-1972 Sound
Recordings CBS Broadcast. ....................................................... 9

13

1.

Post-1972 Sound Recordings Are Governed
by Federal Law. ................................................................ 9

2.

15

CBS Did Not Perform Plaintiffs’ Pre-1972
Recordings. ..................................................................... 13

16

a.

Forensic Testing of Plaintiffs’
Recordings and CBS’s Recordings
Confirms that They Are Not the Same. ............... 13

b.

The Forensic Testing Results Are
Consistent With The Post-1972 History
Of Plaintiffs’ Recordings. .................................... 15

10
11

14

17
18
19
IV.

20

CONCLUSION. .................................................................................. 17

21
22
23
24
25
26
27
28
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 3 of 21 Page ID #:1068

TABLE OF AUTHORITIES

1

Page(s)

2
3 Cases

4 Batjac Prods, Inc. v. Goodtimes Home Video Corp.,
160 F.3d 1223 (9th Cir. 1998) ....................................................................... 10
5
Capitol Records, LLC v. Sirius XM Radio, Inc.,
2014 WL 7387972 (Cal. Super. Ct. Oct. 14, 2014) ........................................ 2
6
7 Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ........................................................................................ 8
8
Fazio v. City and County of San Francisco,
125 F.3d 1328 (9th Cir. 1997) ......................................................................... 8
9
10 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991) ................................................................................ 10, 17
11
Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2014 WL 4725382 (C.D.
Cal. Sept. 22, 2014) ......................................................................................... 2
12
13 Griffin v. J-Records,
398 F. Supp. 2d 1137 (E.D. Wash. 2005) ..................................................... 10
14
Leisek v. Brightwood Corp.,
278 F.3d 895 (9th Cir. 2002) ........................................................................... 9
15
16 Maljack Prods., Inc. v. UAV Corp.,
964 F. Supp. 1416, 28 (C.D. Cal. 1997).................................................. 10, 11
17
Pryor v. Jean,
2014 WL 5023088 (C.D. Cal., Oct. 8, 2014) .................................... 11, 12, 13
18
19 Statutes
20 Cal. Civ. Code § 980.............................................................................................. 3, 7
21 California Business & Professions Code § 17200..................................................... 7
22 Fed.R. Civ. Proc. 56(a) .............................................................................................. 9
23 Other Authorities
24 Flo & Eddie v. Pandora,
No. 15-55287, 2015 WL 5313052 (9th Cir. Sep. 9, 2015)
(Amicus Brief of Computer & Communications Industry
25
Association) ..................................................................................................... 2
26
Flo & Eddie v. Pandora,
No. 15-55287, 2015 WL 5313053 (9th Cir. Sep. 9, 2015)
27
(Amicus Brief of Copyright and Intellectual Property Law
Professors) ....................................................................................................... 2
28
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 4 of 21 Page ID #:1069

Page(s)

1
2

3 Flo & Eddie v. Pandora,
No. 15-55287, 2015 WL 5331515 (Amicus Brief of National
Association of Broadcasters) ........................................................................... 2
4
5 Flo & Eddie v. Pandora, No. 15-55287, 2015 WL 5313054 (Amicus
Brief of Yale Law School Information Society Project and
Affiliated Scholars of Intellectual Property and Free Expression
6
Law) ................................................................................................................. 2
7
James J. Schneider, Defeating the Terminator: How Remastered
Albums May Help Record Companies Avoid Copyright
8
Termination,
53 B.C. L. Rev. 1889 (2012) ......................................................................... 10
9
10 Marc Myers, Behind the Remastering Boom,
THE WALL STREET JOURNAL, Dec. 14, 2012 ................................................... 5
11
Melville B. Miller and David Nimmer, Nimmer on Copyright
§ 2.10[A][2] ............................................................................................. 10, 11
12
13 Noah Drake, Flo & Eddie, Inc.: Public Performance Rights for Pre1972 Sound Recordings, 6 Calif. L. Rev. Cir., at 61 (2015) ........................... 2
14
Sound Recording Act of 1971,
Pub. L. No 92-140, 85 Stat. 391 (1971) .......................................................... 4
15
16 Steve Gordon & Anjana Puri, The Current State of Pre-1972 Sound
Recordings,
4 NYU J. Intell. Prop. & Ent. L. 1 (2015) ....................................................... 2
17
18 Steve Guttenberg, Why Your Favorite Artists’ Recordings Could Have
Terrible Sound Quality, Dec. 26, 2015 ......................................................... 11
19
Tyler Ochoa, A Seismic Ruling on Pre-1972 Sound Recordings and
State Copyright Law, Tech. & Mktg. L. Blog (Oct. 1, 2014) ......................... 2
20
21 U.S. COPYRIGHT OFFICE, FEDERAL COPYRIGHT PROTECTION FOR PRE1972 SOUND RECORDINGS: A REPORT OF THE REGISTER OF
C
OPYRIGHTS 6 (2011) ...................................................................................... 3
22
23 U.S. Copyright Office, Library of Congress, Circular No. 56, Copyright
Registration for Sound Recordings (2014) ......................................... 5, 12, 16
24
25
26
27
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 5 of 21 Page ID #:1070

1 I.

INTRODUCTION

2

This motion poses a narrow factual question that can and should dispose of

3 this case on summary judgment: Did defendants CBS Corporation and CBS Radio
4 Inc. (collectively “CBS”) publicly perform the sound recordings plaintiffs claim to
5 own? As explained in the declarations of Dr. Durand Begault, an acoustic engineer
6 who submitted each of plaintiffs’ and CBS’s recordings to scientific testing, and
7 William Inglot, a Grammy-nominated producer who remastered almost all of the
8 recordings plaintiffs claim CBS played, the answer is an unequivocal “No.”
Dr. Begault and Mr. Inglot confirm that the original recordings plaintiffs

9

10 claim to own are not the same recordings CBS has in its audio files for use in
11 broadcasts. Dr. Begault summarizes his opinion as follows:
12

[T]he sound recordings of each of the performances that plaintiffs

13

claim to own are not the sound recordings that CBS used. That is the

14

case for all 57 of plaintiffs’ claimed songs whose recordings I

15

compared. In other words, CBS did not use any version of the sound

16

recordings that plaintiffs’ claim to own. Instead, CBS used different

17

versions of those sound recordings. Based on the results of these tests,

18

the versions that CBS has used are either: (1) “remastered” versions of

19

the sound recordings plaintiffs claim to own; (2) remastered versions of

20

previously-remastered, and thus different, versions of the sound

21

recordings plaintiffs claim to own; or (3) a completely different

22

performance than the sound recording plaintiffs claim to own.

23 See Declaration of Durand Begault, Ph.D., ¶ 16 (emphasis in original).
Plaintiffs filed this lawsuit on the theory that California law requires anyone

24

25 who wants to play a sound recording created before February 15, 1972—whether on
26 radio, in a restaurant, at home, or anywhere else—to purchase a license. The two
27
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 6 of 21 Page ID #:1071

1 decisions on which plaintiffs’ claim rests 1 have generated wide criticism. 2 To
2 dispose of plaintiffs’ claims against CBS, however, there is no need for the Court to
3 reach the legal question posed by those cases. As plaintiffs’ counsel conceded at the
4 December 14, 2015 status conference, this motion’s fact question—whether CBS
5 played plaintiffs’ original pre-1972 sound recordings or new, post-1972 derivative
6 recordings—is potentially dispositive:
THE COURT:

7

Because if these are new works, they’re going to
be covered by federal law—

8
9

MR. HADLEY:

That’s correct, Your Honor.

10

THE COURT:

—as opposed to state law, correct?

11

MR. HADLEY:

Correct. And it’s our contention, of course, that
these are not new works.

12

13 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

14

15 forensically examined the parties’ sound recordings, plaintiffs cannot establish that
16
17
18
19
20
21
22
23
24
25
26
27
28

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’s
decision will be upheld” because it ignored clear legislative intent); Noah Drake,
Flo & Eddie, Inc.: Public Performance Rights for Pre-1972 Sound Recordings, 6
Calif. L. Rev. Cir., at 61, 66-67 (2015) (criticizing failure to consider legislative
history); Tyler Ochoa, A Seismic Ruling on Pre-1972 Sound Recordings and State
Copyright Law, Tech. & Mktg. L. Blog (Oct. 1, 2014), avail. at
http://blog.ericgoldman.org/ (“Interpreting a state statute first enacted in 1872 to
provide such rights now, some 75 years later, will wreak havoc with existing
commercial practices” and “undo a 75-year-old consensus that state law does not
provide a public performance right”). Numerous amici in the Ninth Circuit Pandora
appeal document the criticism. See Flo & Eddie v. Pandora, No. 15-55287, 2015
WL 5313052 (9th Cir. Sep. 9, 2015) (Computer & Communications Industry
Association); id., 2015 WL 5331515 (National Association of Broadcasters); id.,
2015 WL 5313054 (Yale Law School Information Society Project and Affiliated
Scholars 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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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 7 of 21 Page ID #:1072

1 CBS played their pre-1972 sound recordings. It cannot be disputed that, whereas
2 plaintiffs possess sound recordings necessarily made before February 15, 1972, the
3 recordings CBS possesses are versions that were created many years after1972—in
4 most cases, decades later—through labor-intensive remastering efforts that produced
5 new works. Furthermore, plaintiffs have admitted in their interrogatory responses
6 that they have no personal knowledge of what recordings CBS publicly performed.
7 In fact, for many of the recordings identified in the complaint, plaintiffs must
8 concede they have no evidence (admissible or otherwise) that CBS ever publicly
9 performed any version of them. That is because there is no record anywhere of any
10 such performance. And for the recordings that plaintiffs do contest, the testimony of
11 CBS’s experts precludes any dispute that the recordings CBS played are not the
12 same pre-1972 recordings plaintiffs claim to own.
The remastered recordings that CBS possesses are subject to federal law,

13

14 which preempts any state law rights plaintiffs may have in their pre-1972
15 recordings. Under federal law, CBS has the right to perform post-1972 recordings
16 on terrestrial radio without payment, and to play them on digital platforms under a
17 statutory compulsory license. Based on these facts, and the governing law,
18 plaintiffs’ case should proceed no further.
19 II.

BACKGROUND FACTS

20

A.

21

The Limited Protection For Pre-1972 and Post-1972 Sound
Recordings.

Copyright protection for sound recordings fixed before February 15, 1972, to

22

23 the extent it existed at all, arose under a “patchwork of state protection.” U.S.
24 COPYRIGHT OFFICE, FEDERAL COPYRIGHT PROTECTION FOR PRE-1972 SOUND
25 RECORDINGS: A REPORT OF THE REGISTER OF COPYRIGHTS (“U.S. Copyright Office
26 Report”) 6 (2011), Strabone Decl. Ex. 2. Some states followed the common law,
27 while some states, such as California, enacted statutes to codify that protection. See
28 Cal. Civ. Code § 980. In 1971, Congress extended federal copyright protection to
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 8 of 21 Page ID #:1073

1 sound recordings, but only those fixed on or after February 15, 1972. See Sound
2 Recording Act of 1971, Pub. L. No 92-140, 85 Stat. 391 (1971). Congress left
3 copyright protection for pre-1972 recordings to the states.
When pre-1972 sound recordings were created, generally they were fixed on

4

5 magnetic tape. These tracks were edited, and then consolidated into a single (for
6 mono) or dual (for stereo) track. This initial copy, upon which all future copies
7 would be based, is called the “master recording.” To commercially distribute such
8 recordings, record companies created copies of these masters and sent them to
9 replicating facilities, which would transfer the sound recording to the physical
10 format in which it would be distributed. As music storage technology evolved, the
11 relevant physical formats for the music industry evolved as well. To reflect this
12 change in storage technology, as well as the change in technology through which we
13 listen to music, many record companies have chosen to “remaster” their older sound
14 recordings. See generally Declaration of William Inglot, ¶¶ 3-5.
“Remastering” is the process of editing a sound recording through techniques

15

16 such as equalizing, balancing, and compression to capture the best elements of the
17 original performances and take full advantage of modern digital formats. Statement
18 of Undisputed Facts (“SUF”) ¶ 7. Sound engineers make creative decisions to
19 realize their ultimate vision for a particular recording. For example, a sound
20 engineer may decide a recording is best served through emphasis of the vocals, and
21 will reduce the low frequencies and raise the midrange of the recording to effect that
22 change. SUF ¶ 8. Similarly, if the ultimate product is intended for audiophiles and
23 collectors with high quality stereo systems, a sound engineer may choose to
24 emphasize bass or lower frequencies. Id. These decisions demonstrably impact a
25 listener’s experience.
The listening public has recognized the impact remastering can have on a

26

27 recording. “To repeat buyers of Johnny Cash, The Beatles, Miles Davis, The Beach
28 Boys, Glenn Gould, and many other iconic artists, ‘remastered’ signals that the
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 9 of 21 Page ID #:1074

1 original music has undergone a restoration process to upgrade the sound.” Marc
2 Myers, Behind the Remastering Boom, THE WALL STREET JOURNAL, Dec. 14, 2012,
3 http://www.wsj.com/articles/SB10001424127887324024004578171390737319744.
4 On the other hand, a poor remastering job can elicit equally strong opinions:
The mastering engineer here definitely used too many of the tools at
his disposal in an effort to enhance what was already on the master
tapes. Unfortunately removing the analog tape hiss (not that it was
excessive to begin with anyway) removed the sense of life from these
recordings. And other processing REALLY screwed up some of these
songs, causing the vocals to become an unfocused mess (I've heard that
this is the result of an attempt to widen the stereo image). Do yourself
a favor and seek out the previous cd on the same label (unfortunately
no bonus tracks there) or an import version on the Demon label.

5
6
7
8
9
10

11 “5 star album, 1 star mastering job,” http://www.amazon.com/Im-Still-Love-With12 You/dp/B000087DSN (last accessed February 19, 2016), Strabone Decl. Ex. 3.
The U.S. Copyright Office has confirmed that remastered and reissued pre-

13

14 1972 recordings are recognized as separate, derivative works under federal
15 copyright law, provided that the editing process was not merely mechanical. See
16 U.S. Copyright Office, Library of Congress, Circular No. 56, Copyright Registration
17 for Sound Recordings (2014) at 3-4, Strabone Decl. Ex. 4.
18

B.

19

There are four named plaintiffs in this action. ABS Entertainment, Inc.

Plaintiffs Own Only Pre-1972 Sound Recordings.

20 (“ABS”) claims to be the owner of sound recordings by Al Green, Willie Mitchell,
21 Ace Cannon, and Otis Clay. Barnaby Records, Inc. (“Barnaby”) claims to be the
22 owner of sound recordings by Andy Williams, Johnny Tillotson, The Everly
23 Brothers, Lenny Welch, Ray Stevens, and The Chordettes. Brunswick Record
24 Corporation (“Brunswick”) claims to be the owner of sound recordings by Jackie
25 Wilson, The Chi-Lites, The Lost Generation, The Young-Holy Unlimited, and
26 Tyrone Davis. Malaco, Inc. (“Malaco”) claims to be the owner of sound recordings
27 by King Floyd, Mahalia Jackson, and The Cellos.
28
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

Case 2:15-cv-06257-PA-AGR Document 82-1 Filed 02/29/16 Page 10 of 21 Page ID
#:1075

In the operative pleading, the First Amended Complaint (“FAC”), plaintiffs

1

2 have identified 174 sound recordings that they claim to own. FAC, Sch. A1-A4.
3 These recordings were originally fixed before February 15, 1972. Since then,
4 however, the recordings have been remastered and reissued numerous times, often
5 with their own copyright registrations. For example:

6

Public searches show that Tired of Being Alone by Al Green,

7

which ABS alleges to own, has been re-released at least 85 times since 1972.

8

See Tired of Being Alone, http://www.allmusic.com/song/tired-of-being-

9

alone-mt0033488774, (last accessed February 19, 2016).

10

Bye Bye Love by The Everly Brothers, which Barnaby claims to

11

own, has been re-released at least 158 times since 1972. See The Everly

12

Brothers: Bye Bye Love, http://www.allmusic.com/song/bye-bye-love-

13

mt0011984624, (last accessed February 19, 2016). The album The Complete

14

Cadence Recordings 1957-1960, which includes Bye Bye Love and other

15

songs Barnaby claims to own such as Poor Jenny and (‘Til) I Kissed You,

16

states in its liner notes that it was “Digitally Remasted by Dan Hersch,

17

DigiPrep, Hollywood.” SUF ¶ 9.

18

Can I Change My Mind by Tyrone Davis, which Brunswick

19

claims to own, has been re-released at least 56 times since 1972. See Tyrone

20

Davis: Can I Change My Mind, http://www.allmusic.com/song/can-i-change-

21

my-mind-mt0006432728, (last accessed February 19, 2016). The CD jacket

22

for the album 20 Greatest Hits, which includes Can I Change My Mind and

23

other Brunswick songs such as I Had It All The Time and Is It Something

24

You’ve Got, states in big bold letters that the album is “DIGITALLY

25

REMASTERED.” SUF ¶ 10.

26

His Eye Is on the Sparrow by Mahalia Jackson, which Malaco

27

claims to own, has been re-released at least 32 times since 1972. See Mahalia

28

Jackson: His Eye Is on the Sparrow, http://www.allmusic.com/song/his-eye-

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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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#:1076

1

is-on-the-sparrow-mt0000149160, (last accessed February 19, 2016). The

2

liner notes to the album Songs of Hope and Faith, which includes His Eye Is

3

on the Sparrow and other songs Malaco claims to own such as In the Upper

4

Room and Silent Night, state that the album is a “digitally remastered

5

compilation.” SUF ¶ 11.

6

On August 17, 2015, ABS filed a putative class action against CBS alleging

7 copyright infringement in violation of California Civil Code § 980 (a)(2),
8 misappropriation, unfair business practices in violation of California Business &
9 Professions Code § 17200, and conversion. 3 Plaintiffs filed the FAC on October 29,
10 2015 and added Barnaby, Brunswick, and Malaco as named plaintiffs. Paragraph 26
11 of the FAC alleges that:
12

With the advent of the digital age, some or all of the Recordings have

13

been “remastered” by mechanically taking the final mix of the sound

14

recording in its analog format and transferring it into a digital format

15

without remixing, resequencing or adding additional sounds.

16

In other words, plaintiffs acknowledge that the dispositive threshold issue is

17 whether any “remastered” or “reissued” recording is identical to the original pre18 1972 recordings plaintiffs claim to own. The parties have conducted discovery on
19 this issue and the undisputed evidence shows that: (1) in connection with the re20 release of plaintiffs’ sound recordings in digital formats, the recordings were
21 modified through numerous remastering processes; and (2) the recordings CBS has
22 for use in its broadcasts are not the original, pre-1972 recordings plaintiffs claim to
23 own, but post-1972, remastered versions.
24

C.

25

CBS delivers music content through broadcast radio channels, the Internet,

CBS Did Not Perform Plaintiffs’ Pre-1972 Sound Recordings.

26 and mobile applications. FAC ¶ 2. Plaintiffs allege that CBS’s broadcast of their
27
28

3

On November 25, 2015, the Court struck plaintiffs’ class allegations.

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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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#:1077

1 sound recordings via its radio stations and Internet streaming services without
2 permission and payment violates their public performance right. FAC ¶ 4.
3 Plaintiffs also allege that the copies CBS makes to broadcast and stream songs
4 violate their reproduction, distribution, and other exploitation rights. FAC ¶ 33.
CBS did not perform any of plaintiffs’ pre-1972 sound recordings in the last

5

6 four years. As an initial matter, for the vast majority of the songs plaintiffs have put
7 at issue, there is no record anywhere even suggesting that CBS may have played the
8 song. SUF ¶ 6. Moreover, CBS simply does not play pre-1972 sound recordings.
9 SUF ¶ 12. To the best of CBS’s knowledge, CBS plays only post-1972 digital
10 sound recordings that have been reissued or remastered. Id. CBS maintains in its
11 storage systems a digital file containing each sound recording it plays. For each
12 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,

13

14 to compare the recordings in CBS’s storage systems to the pre-1972 sound
15 recordings plaintiffs claim to own. He has concluded that, without exception, they
16 are different recordings. SUF ¶ 13.
17 III.

CBS IS ENTITLED TO SUMMARY JUDGMENT.

18

As the Court has acknowledged, a dispositive threshold issue in this case is

19 whether CBS actually played plaintiffs’ pre-1972 recordings, as opposed to new
20 works that are protected under federal Copyright law as derivative works. See
21 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:

22

23 (1) CBS played a recording of the song and, if it did, (2) that sound recording is the
24 pre-1972 recording plaintiffs claim to own. Once CBS has “pointed out” the
25 deficiencies in plaintiffs’ claims, plaintiffs have the burden of showing “significant
26 probative evidence” in support of their claims. Celotex Corp. v. Catrett, 477 U.S.
27 317, 325 (1986); Fazio v. City and County of San Francisco, 125 F.3d 1328, 1331
28 (9th Cir. 1997). If plaintiffs cannot meet that burden, CBS is entitled to summary
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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1 judgment under FRCP 56(a). Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th
2 Cir. 2002). As demonstrated below, there is no evidence supporting plaintiffs’
3 claims that CBS publicly performed their sound recordings.
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A.

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Plaintiffs Cannot Show That CBS Broadcast Their Sound
Recordings.

For the vast majority of the songs plaintiffs have put at issue in this litigation,

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7 plaintiffs have no basis for claiming that CBS publicly performed them. There is no
8 record of those songs ever being performed, let alone accessed by listeners in
9 California. CBS has produced playlist records for its Internet streaming service for
10 the previous four years. For its terrestrial radio service, no playlist records exist. 4
11 Even if reports from third-party services, such as Mediabase, were reliable and
12 admissible,5 those reports show no record of CBS playing those songs in the last
13 four years. SUF ¶ 6. Because plaintiffs have the burden of proof, CBS is entitled to
14 summary judgment for each sound recording identified in the FAC unless plaintiffs
15 come forward with admissible evidence that CBS performed it.
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B.

Plaintiffs Cannot Prevail On Any Post-1972 Sound Recordings

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CBS Broadcast.

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1.

Post-1972 Sound Recordings Are Governed by Federal Law.

It is not enough for plaintiffs to show that CBS publicly performed a

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20 recording with merely the same title and artist as a pre-1972 sound recording that
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Although CBS is required by law to keep playlist records of its Internet streaming
for purposes of royalty payments, it is not required to do so for terrestrial broadcasts.
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Mediabase is a third-party service that created logs of what radio stations play by
having its employees listen to over-the-air “skim” tapes (cassettes containing seven
seconds for every two minutes of air play). CBS does not know how Mediabase
currently 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 the
radio. “Radio’s Most Innovative: Mediabase/Rich Meyer,” JACOBLOG, Sept. 5,
2014, http://jacobsmediablog.com/2014/09/05/radios-most-innovativemediabaserich-meyer. Nor does CBS know whether listeners attempt to distinguish
the original vs. remastered versions of a song, much less, log such distinctions.

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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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1 plaintiffs claim to own. It matters whether CBS played the original pre-1972 sound
2 recording or whether CBS played a post-1972 version of that recording. The
3 copyright in a sound recording attaches to the specific “aural version of such work
4 as fixed on [a] material object.” 1 Melville B. Miller and David Nimmer, Nimmer on
5 Copyright § 2.10[A][2]. The exclusive right in a sound recording is limited to the
6 right to “duplicate the sound recording in the form of phonorecords or copies that
7 directly or indirectly recapture the actual sounds fixed in the recording.” 17 U.S.C.
8 § 114(b). Owners of copyrighted sound recordings are therefore “largely limited to
9 proceeding against the tape or record ‘pirate’ who without permission makes a
10 reproduction of the actual sounds in a protected recording.” Griffin v. J-Records,
11 398 F. Supp. 2d 1137, 1142 (E.D. Wash. 2005). It matters which sound recording
12 CBS played.
Federal copyright law protects remastered sound recordings as derivative

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14 works, provided that they possess a minimal degree of creativity that differs from
15 the original. See Maljack Prods., Inc. v. UAV Corp., 964 F. Supp. 1416, 1426, 28
16 (C.D. Cal. 1997), aff’d sub nom. Batjac Prods, Inc. v. Goodtimes Home Video
17 Corp., 160 F.3d 1223 (9th Cir. 1998). “The vast majority of works make the grade
18 quite easily, as they possess some creative spark, no matter how crude, humble or
19 obvious it might be.” Maljack, 964 F. Supp. at 1426 (citing Feist Publ’ns, Inc. v.
20 Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)). “[T]hus, the degree of originality
21 required to create a copyrightable derivative work is low.” Id.
The actual steps and end result of remastering a given sound recording

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23 depend on numerous factors specific to that song. Producers and sound engineers
24 make creative decisions to produce the best possible remaster. See James J.
25 Schneider, Defeating the Terminator: How Remastered Albums May Help Record
26 Companies Avoid Copyright Termination, 53 B.C. L. Rev. 1889, 1902 (2012); SUF
27 ¶ 8. These decisions are guided by the participants’ aesthetic sense and technical
28 expertise. Id. Sound recordings are remastered with different goals, based on the
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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1 expected format and eventual use of the final product. For example, the way a
2 sound recording is engineered may depend on whether the recording will be released
3 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: No
engineer 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.

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8 See Steve Guttenberg, Why Your Favorite Artists’ Recordings Could Have Terrible
9 Sound Quality, Dec. 26, 2015, http://www.cnet.com/news/why-favorite-artists10 bands-recordings-cd-mp3-could-sound-bad/ (emphasis in original); SUF ¶ 14. The
11 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 involve
such originality as to command copyright, as where it involves such acts as
equalizing, changing the highs and lows, providing more bass and treble,
adding echo, or abridging by making discretionary and not obvious internal
cuts…

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15 Pryor v. Jean, 2014 WL 5023088 at *4 (C.D. Cal. Oct. 8, 2014) (quoting 1 Melville
16 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

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18 “sound enhancements” to a sound recording that “upgrade[] the quality of the
19 sound” are sufficient to provide a new sound recording with federal copyright
20 protection as a derivative work. Maljack, 964 F. Supp. at 1428. In 1993, the
21 plaintiff had digitized the soundtrack of a 1963 movie and, when doing so,
22 remastered the soundtrack through a “creative mixing and balancing of sounds.” Id.
23 The Court held that 17 U.S.C. § 114(b) “explicitly recognizes that a ‘derivative
24 work in which the actual sounds fixed in the sound recording are rearranged,
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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 for
27 originality. See id. at 1427-8. The Court held that the editor’s “artistic decisions”
28 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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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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1 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

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3 are protected as derivative works under federal copyright law, as long as there are
4 differences that reflect minimal originality. As it explained in its Circular No. 56:
5 Copyright Registration for Sound Recordings:
Examples of derivative sound recordings that generally can be
registered include the following:

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• a remix from multitrack sources
• a remastering that involves multiple kinds of creative
authorship, such as adjustments of equalization, sound editing,
and channel assignment.

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Mechanical changes or processes applied to a sound recording, such
as a change in format, de-clicking, and noise reduction, generally do
not represent enough original authorship to be registered.

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13 Id. at 3-4, Strabone Decl. Ex. 4.
CBS is entitled to prevail on plaintiffs’ state law copyright claims if CBS

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15 publicly performed post-1972 derivative works that are subject to federal copyright.
16 The fact that the derivative work incorporates the original pre-1972 sound
17 recordings does not change the outcome. Judge Pregerson addressed a similar
18 situation in Pryor v. Jean, No. CV13-02867 DDP, 2014 WL 5023088 (C.D. Cal.,
19 Oct. 8, 2014). The case concerned a 1974 recording by David Pryor. Id. at *1. He
20 later authorized a record company to remaster and reissue the song, which it did in
21 1975. Id. Years later, the record company granted a license to Jean (and others) to
22 copy the remastered recording for use in movies and television programs. Pryor’s
23 heirs sued, claiming that the license from the record company was insufficient. Id.
24 The Court dismissed the claims because the defendants did not use the 1974 sound
25 recording; instead, they used the 1975 remastered sound recording. Id. at *10-11.
26 The Court did so despite plaintiffs’ allegation that the remastered recording was “a
27 literal copy” of and necessarily contained the original 1974 recording (id. at *1 n.1):
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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Plaintiffs have the exclusive right to duplicate, rearrange, or remix the
“actual sounds” of the [original] record. Defendants did not do
anything with those “actual sounds.” Rather Defendants used licensed
“actual sounds” from the [reissued] record.

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4 Id. at *4. The court refused to permit the plaintiffs to leverage any interest they had
5 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

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7 never played the “actual sounds” from plaintiffs’ original pre-1972 sound
8 recordings. Instead, CBS played the “actual sounds” from reissued or remastered
9 versions that were created long after 1972. Plaintiffs cannot assert any California
10 copyright protection that they may have in a pre-1972 recording to constrain CBS’s
11 use of a post-1972 recording, whose rights are governed solely by federal law.
2.

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CBS Did Not Perform Plaintiffs’ Pre-1972 Recordings.

The parties have produced to one another all of the relevant sound recordings

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14 they possess. Plaintiffs produced copies of what they contend are their original pre15 1972 “master” recordings. CBS produced copies of the sound recordings located in
16 its storage systems for each radio station at issue and for its Internet service. The
17 evidence confirms that CBS did not play plaintiffs’ recordings.
a.

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Forensic Testing of Plaintiffs’ Recordings and CBS’s
Recordings Confirms that They Are Not the Same.

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CBS engaged Dr. Durand Begault, an acoustic engineer, to forensically

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21 compare plaintiffs’ sound recordings to the recordings CBS has of the same songs.
22 As detailed in Dr. Begault’s declaration, CBS could not have played any of
23 plaintiffs’ sound recordings because plaintiffs’ recordings and CBS’s recordings of
24 those songs are not the same. For each sound recording at issue in this case—
25 plaintiffs’ version of the song and the versions CBS used—Dr. Begault measured
26 and then compared four objective criteria:
1.

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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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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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sounds have the same pitch and loudness. To objectively measure timbre, Dr.

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Begault used recognized methods to analyze the Long Term Average

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Spectrum of each recording.

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2.

Spatial Imagery: This refers to “where” the listener perceives

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the sounds of the vocals, instruments, and other elements of a recording to be

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coming from, in terms of left vs. right and front vs. rear. To objectively

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measure spatial imagery, Dr. Begault analyzed left-right channel correlation

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using a vectorscope.

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3.

Sound Balance: This refers to how the audio actually sounds to

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the listener’s ears, i.e., its perceived loudness. When measured over the entire

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length of a sound recording, different versions will have different loudness

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“histories.” To objectively measure the loudness histories of each of the

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sound recordings at issue in the case, Dr. Begault applied a methodology

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corresponding to an established broadcasting industry standard.

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4.

Loudness Range: This refers to a numerical measurement (in

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decibels) of the range in loudness of a recording. Using methods similar to

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those Dr. Begault applied to measure Sound Balance, he calculated this

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measure for each recording. As he explains, if two recordings of a given song

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are the same, the loudness ranges will necessarily be the same.

20 See Begault Decl. ¶¶ 29, 32, 40, 47-48, and 58-59.
These four objective characteristics are recognized within the field of

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22 acoustics as relevant indicia that allow one experienced in the field to evaluate the
23 similarity or dissimilarity of any two sound recordings. SUF ¶ 15.
Using these objective tests, Dr. Begault confirmed that “CBS did not use any

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25 version of the sound recordings that plaintiffs’ claim to own.” SUF ¶ 13. None of
26 plaintiffs’ recordings matched CBS’ recordings.
For example, the recording of That’s How It Is (When You’re In Love) by Otis

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28 Clay that CBS played differs significantly from plaintiffs’ original master in all four
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
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1 categories: timbre, spatial range, sound balance, and loudness range. SUF ¶¶ 34-35.
2 Dr. Begault’s forensic analysis also shows that the mastering engineer who worked
3 on CBS’s recording emphasized high frequencies. Id. Similar differences exist
4 between each of the recordings plaintiffs claim to own and the CBS versions of
5 those recordings. SUF ¶¶ 20-182.
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b.

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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

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9 sound recordings plaintiffs claim to own. One need only navigate to Amazon.com
10 or any number of other music sites to discover the existence and production details
11 of the many post-1972 versions of plaintiffs’ recordings. A common thread that ties
12 at least 46 recordings plaintiffs claim to own is that noted record producer and
13 engineer William Inglot was responsible for creating remastered versions of those
14 recordings, long after 1972.
Mr. Inglot has worked as a producer, sound engineer, and archivist. He has

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16 personally overseen and produced over 1,000 album releases. From 1982, when the
17 CD format was released, until 2007, Mr. Inglot worked at Rhino Entertainment, a
18 company that produces and releases recorded music from scores of artists. There he
19 developed an expertise in producing remastered versions of sound recordings
20 originally recorded in the 1950s, 60s, and 70s, including, as detailed in his
21 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

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23 abilities and experience. Online forums have recognized his unique talent. See
24 Steve Hoffman Music Forums topic “All Hail Dan Hersch & Bill Inglot @
25 Digiprep” (last accessed February 29, 2016), Strabone Decl. Ex. 5. Mr. Inglot is
26 highly sought after and praised because he did not approach the task of remastering
27 these recordings in a mechanical manner. These efforts make a difference in how a
28 remaster is perceived by the listening public. Several reviewers noted regarding Mr.
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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1 Inglot’s work on several of the sound recordings plaintiffs have put at issue in this
2 case:
• “This is a great CD, with all the old favorites remastered and [sounds] so
clear. 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.

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• “The sound quality is excellent ... these will replace a lot of weaker digital
transfers.” See Amazon.com reviews of In Yo' Face! The History of Funk
(last accessed February 23, 2016), Strabone Decl. Ex. 7.

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• “The sound quality is pristine, so you get to [hear] the great four-part
harmonizing 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.

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In his declaration, Mr. Inglot describes the steps he personally undertook to

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13 create new, remastered versions of the songs at issue here. See Inglot Decl., ¶¶ 3114 52. He confirms the originality and creativity that went into remastering each one.
15 For example, on Heartaches & Harmonies, a 1994 album by The Everly Brothers
16 that includes Bye Bye Love, Bird Dog, Poor Jenny, and Til I Kissed You, all of
17 which plaintiffs have put at issue, Mr. Inglot made scores of equalization
18 adjustments at numerous frequencies and modified loudness profiles, among other
19 things, to create a new and distinct version of each song. SUF ¶ 16.
These differences between the recordings—both as objectively measured by

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21 Dr. Begault and as explained by Mr. Inglot—are not the result of what the Copyright
22 Registrar refers to as merely “mechanical changes or processes … such as a change
23 in format, de-clicking, and noise reduction”; instead, they reflect “multiple kinds of
24 creative authorship, such as adjustments of equalization, sound editing, and channel
25 assignment.” See Copyright Circular No. 56 at 3-4, Strabone Decl. Ex. 4.
26 Moreover, plaintiffs cannot dismiss these differences as legally de minimis. As
27 discussed above, very little originality is needed to create a derivative work. See
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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)

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1 Feist, 499 U.S. 340, 345 (1991) (“To be sure, the requisite level of creativity is
2 extremely low; even a slight amount will suffice.”).
It is telling that, in some cases, CBS has several different remastered versions

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4 of the same pre-1972 recording. SUF ¶ 17. This confirms that the differences
5 between the original recording and the remastered version are not the inevitable
6 result of converting to the CD format or mere de-clicking and noise reduction.
7 Instead, these differences show the dozens of discretionary judgments that sound
8 engineers made during the remastering process, and explain how two engineers can
9 remaster the same recording in different ways. SUF ¶ 18.
10 IV.

CONCLUSION.

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The evidence establishes that CBS did not play any of plaintiffs’ pre-1972

12 recordings. Accordingly, the Court should grant summary judgment in favor of
13 CBS. Alternatively, the Court should grant partial summary judgment in favor of
14 CBS as to each of the 57 songs at issue in the case for which plaintiffs fail to meet
15 their burden of creating a triable issue of fact over whether CBS performed the
16 version of that song plaintiffs’ claim to own.
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18 Dated: February 29, 2016

Respectfully submitted,

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ROBERT M. SCHWARTZ
VICTOR JIH
ANDREW J. STRABONE
AMIT GRESSEL
IRELL & MANELLA LLP

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By:

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Robert M. Schwartz
Attorneys for Defendants
CBS Corporation and CBS Radio Inc.

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MPAS ISO DEFS’ MOTION FOR SUMMARY JUDGMENT
CASE NO. 2:15-CV-6257-PA (AGRX)