SAN FRANCISCO – A federal appeals court will not be budging from its decision last summer that digitally remastered pre-1972 sound recordings are covered by federal law as newly copyrighted songs.
The 9th U.S. Circuit Court of Appeals issued an amended order on Oct. 31, more than two months after its decision in August to reverse a lower court's decision to grant summary judgment in favor of defendant CBS Corp. in copyright litigation by a group of plaintiffs headed by ABS Entertainment. In its amended order, the appeals court panel announced its unanimous decision to deny a CBS petition for rehearing.
"The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc," the amended opinion said. "The petition for panel rehearing and the petition for rehearing en banc are denied. Future petitions for rehearing or rehearing en banc will not be entertained in this case."
Barring further appeals, the appeals court's amended opinion leaves in places its Aug. 20 decision in favor of the plaintiffs.
The plaintiffs own the sound recordings of various artists, such as the Everly Brothers and Al Green, produced prior to Feb. 15, 1972. The songs have enjoyed federal copyright protection but it was not until 1971 that Congress formally granted copyright to performance of a sound recording. However, Congress extended that protection only to sound records after Feb. 15, 1972.
In their class action against CBS, plaintiffs alleged copyright infringement under California copyright law.
In August, the appeals court reversed a decision by the U.S. District Court for California's Central District to grant summary judgment in favor of CBS and to strike class certification in the case, according to the background portion of the appeals court's amended opinion. The appeals court panel found that the district court was wrong in finding lack of a genuine issue of material fact about the copyright eligibility of remastered sound recordings CBS had distributed.
"The panel concluded that a derivative sound recording distinctly identifiable solely by the changes in medium generally does not exhibit the minimum level of originality to be copyrightable," the opinion said. "The panel held that the district court erred in concluding that plaintiffs' state copyright interest in the pre-1972 sound recordings embodied in the remastered sound recordings was preempted by federal copyright law."
U.S. Circuit Judge Richard Linn wrote the opinion and amended opinion in which U.S. Circuit Judges Marsha S. Berzon and Paul J. Watford concurred.