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CBS hits back in pre-1972 case against AM/FM radio

By | Published on Friday 23 October 2015


More pre-1972 good times now, and US radio firm CBS has come up with some arguments against a legal claim that it should also be paying royalties to labels whenever it plays golden oldie recordings on its AM and FM channels.

Under federal law Stateside, conventional radio stations do not have to pay the labels any royalties, on the basis that airplay is free promotion. This puts the US out of sync with most other countries, where radio stations pay royalties to both record companies and music publishers. It was always assumed that the same rule applied to earlier sound recordings even though they were protected by state-level rather than federal copyright law.

The landmark ruling in the pre-1972 lawsuits against Sirius, which said that – even though state laws make no specific reference to satellite or online radio – it still had to pay royalties to the labels on that older catalogue, suggested that all broadcasters have, in theory, always had that obligation too. Even though no AM/FM stations have ever paid.

A company called ABS Entertainment, which owns old recordings by Al Green, amongst others, decided to test this precedent by suing radio giants CBS Radio, iHeartMedia and Cumulus for royalties last month. And earlier this week the first of the defendants filed a motion attempting to have that lawsuit thrown out.

According to The Hollywood Reporter, the filing disputes that a general ‘performing right’ exists as part of the sound recording copyright at state level in California – where the landmark ruling in the Sirius case occurred – while arguing that the fact the labels have never gone after royalties on pre-1972 tracks before, instead lobbying Congress for a general performing right to be added at a federal level, proves that the record industry accepted this interpretation of the law. Though a New York judge considering another Sirius case said previous failure on the record industry’s part to enforce this right didn’t mean the right could not exist in state law.

Just in case none of that works, CBS then introduces a novel argument: that it only plays re-released, re-mastered versions of pre-1972 sound recordings. A new copyright was created in the remastering and that occurred well after 1972, it argues. “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”, says the filing.

Whether that wiggle will work in court remains to be seen.