Broadcasting, recorded music
A California federal judge has delivered a “legal earthquake” by declaring Flo & Eddie of The Turtles “the victors in a lawsuit against SiriusXM over the public performance of pre-1972 sound recordings” by finding that SiriusXM had violated the Turtles’ pre-1972 master copyrights by playing their music without licensing it or paying performance royalties. Flo & Eddie was created in 1971 and is owned and controlled by Howard Kaylan and Mark Volman, two of the founding members of the Turtles, who were most popular for their 1967 hit single “Happy Together.” The lawsuit was filed in August last year, seeking royalties from the satellite broadcaster. Billboard reports that the plaintiffs are seeking $100 million in damages, but says “the money is hardly the only consequence of a ruling on Monday that could eventually disrupt the operations of the satellite radio giant as well as other services like Pandora.” The band members launched the case in August 2013.
But its not been plain sailing for pre-1972 copyright owners – nor is the whole issue exactly clear. In August this year, U.S. Federal Court Judge Mary Strobel indicated that she was leaning towards rejecting a motion by Warner, Universal, Sony, Capitol and ABKCO Records to accept the labels’ interpretation of the law in jury instructions in a similar matter. The plaintiffs again are arguing that state laws protect the misappropriation of older pre-1972 sound recordings that were authored before federal copyright protection applied. But in that case the judge wasn’t ready to go that far and indicated that she felt the label’s might be relying on inappropriate case law.
Billboard reports in the new California decision, U.S. District Judge Phillip Gutierrez ruled against SiriusXM holding that California state law, as it is written, gives the master recording owner exclusive performance rights. Consequently, the judge further ruled in Flo & Eddie’s favour on all causes of action as it applied to public performance, but not to alleged reproduction copyright violations. The judge ruled that if Flo & Eddie want to pursue their allegations of copyright, that SiriusXM was making and storing temporary copies of their music for broadcast purposes, it would have to be decided in a separate trial.
With Judge Strobel’s approach, as well as pending cases on the same issue in Florida and New York – almost all commentators expect SiriusXM to appeal against Judge Gutierrez’s ruling although conversely it remains to be seen whether Judge Strobel now feels obliged to follow this week’s ruling as a precedent. In October 2013 Sirius said “As will be shown at a later stage of these proceedings, there is no state law that requires SiriusXM (or any of the hundreds of thousands of other U.S. businesses that publicly perform music) to pay license fees for Pre-1972 Recordings,” adding that “Plaintiff’s multiple court filings constitute a form of lawsuit lottery in search of an elusive new state-law right that would radically overturn decades of settled practice.”
It is also worth noting the earlier appellate court ruling in the action by the major record labels against Grovveshark, which has also focusses on the relevant copyright protection pre-192 sound recordings. Although at first instance in 2012 a New York judge did not concur with the majors, saying that having DMCA safe harbors only applying to post-1972 recordings would “spawn legal uncertainty” for digital firms relying on the federal laws for protection, on appeal that ruling was overturned, with appeal judges saying that “Congress explicitly, and very clearly, separated the universe of sound recordings into two categories, one for works ‘fixed’ after 15 Feb 1972, to which it granted federal copyright protection, and one for those fixed before that date, to which it did not”.