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On August 20, 2018, McKool Smith secured a significant victory before the U.S. Court of Appeals for the Ninth Circuit, reversing a lower court’s decision, and allowing a group of plaintiffs led by ABS Entertainment to proceed with a class action lawsuit. The plaintiffs seek to recover royalty payments from CBS Corporation for radio broadcasts and digital performances involving pre-1972 musical recordings, including works from music legends such as Al Green, Jackie Wilson, The Everly Brothers, and King Floyd among others.

McKool Smith Principal Robert Allen serves as lead counsel for the plaintiffs, including ABS Entertainment, Barnaby Records Inc., Brunswick Record Corporation, and Malaco Inc., who allege that CBS violated state copyright laws by transmitting and distributing remastered sound recordings of musical performances that were originally fixed before 1972.

In a June 2016 ruling, a lower court granted summary judgment to the defendants finding that the plaintiffs’ claims were preempted by the Sound Recording Act, which excuses infringement for performances by terrestrial radio fixed after February 15, 1972.

However, in its decision, a three-judge panel for the Ninth Circuit agreed with McKool Smith’s arguments in ruling that the district court wrongly found that there was no genuine issue of fact surrounding the copyright eligibility of remastered recordings. In addition to reversing the district court’s summary judgment ruling, the Ninth Circuit also reversed the district court’s ruling striking the plaintiffs’ motion for class action certification as untimely.

“The Ninth Circuit’s decision completely vindicates our clients,” said McKool Smith Principal Robert Allen. “The Court overturned the lower court’s application of local rules concerning when class actions must be certified, and found that our clients’ remastered recordings were not derivative works, and that even if they were, the Copyright Act would not preclude our clients from enforcing their rights. We will continue to vigorously enforce and protect our clients’ intellectual property.”

Along with Robert E. Allen, the McKool Smith team included firm principals Roderick G. Dorman, and Alan P. Block.

The case is ABS Entertainment Inc. et al. v. CBS Corp. et al., case number 16-55917 in the U.S. Court of Appeals for the Ninth Circuit.

With more than 185 trial lawyers across offices in Austin, Dallas, Houston, Los Angeles, Marshall, New York, Silicon Valley, and Washington, D.C., McKool Smith has established a reputation as one of America’s leading trial firms. Since 2006, the firm has secured eleven nine-figure jury verdicts and twelve eight-figure jury verdicts. The firm has also won more VerdictSearch and The National Law Journal "Top 100 Verdicts" over the last ten years than any other law firm in the country. Courtroom successes like these have earned McKool Smith critical acclaim and helped the firm become what The Wall Street Journal describes as “one of the biggest law firm success stories of the past decade.” McKool Smith represents clients in complex commercial litigation, intellectual property, insurance recovery, bankruptcy, and white collar defense matters.

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