ABS Entm't, Inc. v. CBS Corp.
908 F.3d 405
9th Cir.2018Background
- ABS owns pre-1972 analog sound recordings and commissioned remastering engineers to create digital remasters for commercial distribution; remasters contain only sounds fixed pre-1972 and no added or resequenced material.
- CBS streamed and broadcast music (including in California) using digitally mastered/remastered recordings and paid composition royalties and compulsory license fees for digital streams; terrestrial radio performances were unlicensed under the statutory safe harbor.
- ABS sued in the Central District of California alleging state-law claims (California Civil Code § 980(a)(2), conversion/misappropriation, and unfair competition) for CBS's use of remastered pre-1972 recordings.
- District court: struck ABS's class-certification motion as untimely under local rules; excluded ABS's expert Paul Geluso under Daubert; admitted CBS's expert showing perceptible technical changes; granted summary judgment for CBS, holding remasters were original derivative works governed exclusively by federal copyright law and that Triton reports were inadmissible hearsay.
- Ninth Circuit: reversed summary judgment and the striking of the class-certification motion, held the district court abused its discretion excluding Geluso and the Triton reports, and remanded for further proceedings (including consideration of pre-certification discovery).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright eligibility of remastered pre-1972 recordings | Remasters are intended as accurate digital copies; differences are trivial and do not change essential character or add original authorship | Perceptible technical changes (timbre, EQ, spatial imagery) show original authorship sufficient for derivative-work copyright | Reversed: genuine issues of material fact exist; technical quality changes alone do not prove requisite originality; remasters rarely qualify absent new sounds, resequencing, or identifiable independent authorship |
| Admissibility of ABS expert Geluso (Daubert) | Geluso used waveform, spectral, and critical-listening analysis to rebut CBS expert and show recordings embody same performance | District court: methods unscientific, limited (5 seconds), unreliable, and unnecessary because jurors can listen themselves | Reversed: exclusion was abuse of discretion; Geluso's methods were relevant rebuttal evidence and should be considered on remand |
| Admissibility of Triton reports (business records) as proof of CBS performances in California | Triton reports are regular business records used by CBS for royalty accounting and suffice to raise a factual dispute on performance | CBS argued foundation inadequate (witness not Triton employee) and reports insufficient without comparative audio analysis | Reversed: district court abused discretion; a CBS employee who relied on Triton can lay foundation; Triton entries create jury-issue about which versions were performed |
| Striking class-certification motion as untimely under Local Rule 23-3 | Local rule's 90-day limit conflicted with Fed. R. Civ. P. 23(c)(1)(A); plaintiff needed pre-certification discovery; striking for technical defects was abuse | District court enforced strict local deadlines and struck for procedural deficiencies | Reversed: Local Rule 23-3 cannot override Rule 23; district court should consider class motion on merits and whether pre-certification discovery is warranted |
Key Cases Cited
- Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (originality requires independent creation and minimal creativity)
- Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (copyright protects author's original expression)
- Entertainment Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211 (2dary-work originality must change essential character; functional/format-driven changes not copyrightable)
- Meshwerks, Inc. v. Toyota Motor Sales U.S.A., 528 F.3d 1258 (digital translation/copying and process skill do not guarantee copyright; look to final product)
- L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (changes from translation to new medium may be trivial and non-copyrightable)
- U.S. Auto Parts Net., Inc. v. Parts Geek, LLC, 692 F.3d 1009 (applies Durham two-part test for derivative works)
- Durham Indus. v. Tomy Corp., 630 F.2d 905 (derivative work test and limits to scope vis-à-vis underlying work)
- Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513 (authorized maker of a work owns copyright in incremental original expression absent contrary contract)
- New York Times Co. v. Tasini, 533 U.S. 483 (inclusion or electronic use does not by itself authorize derivative copyright; purpose-agnostic argument rejected here)