iHeart radio: Another pre-1972 sound recording case – with a twist

April 2017

Broadcasting, recorded music

The Georgia Supreme Court has ruled in favour of iHeart in another lawsuit concerning pr-192 sound recordings, whoch are protected by state laws rather than by federal copyright law. 
Here, iHeart have defeated a copyright claim made by Arthur and Barbara Sheridan over iHeart streaming pre-1972 recordings they control – without licence.


As readers will remember the USA is a bit of a mess when it comes to who pays what for the use of recorded music. Federal law means that AM/FM stations have never paid royalties when playing post 1972 sound recordings. Digital online and satellite broadcasters are treated differently and do have to pay to use post 1972 copyrights (and there is a collection society, SoundExchange, set up to manage the collections).  But these broadcasters decided they could use pre-192 sound recordings without a licence. The Turtle’s Flo & Eddie have led the challenge against the likes of Sirius XM, arguing in California, New York and Florida arguing that state law there actually provides a general performing right for sound. They won at first instance in California, won at first instance in New York but lost on appeal, and lost in Florida. In California, the matter is now heading to the state’s Supreme Court.
In Georgia, The Sheridans, who own a number of golden oldie sound recordings by the likes of the Flamingoes, T-Bone walker and Jimmy Reed, used a different argument in their class action against iHeartRadio, argueing that the iHeart streaming platform was in the business of ‘transferring’ sound recordings, an act that is protected by copyright in the state. The Sheridans’ lawsuit said that “iHeartMedia needed their consent to transfer their master sound recordings to iHeartRadio listeners” and that therefore the broadcaster “engaged in racketeering activity by making unauthorised transfers”.
However, the law being cited by the Sheridans provides an exception for broadcasters. It says permission is not needed for transferring a sound recording if a person “transfers or causes to be transferred any such sounds … intended for or in connection with radio or television broadcast transmission or related uses”.
The state’s Supreme Court judges there had to assess whether iHeartRadio – which provides simulcasts of the broadcaster’s AM/FM radio services as well as a personalised radio service – fell under the category of “broadcast transmission or related uses”. And the court has now  ruled that it does, concluding that the listener experience (even with iHeart’s personalised radio service) was similar to the conventional radio experience and that although iHeartRadio “allows users to ‘build’ their own personalised station around a particular song or band or genre, “is not an on-demand service, and ultimately resembles someone selecting a terrestrial AM/FM station based on the station’s advertised genre of music”.


The Sheridans have filed lawsuits against iHeart, Pandora and SiriusXM in four other states.

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