The Latest From Kinney and Lange


■ Wendy M. Bratten

In a September decision out of the U.S. District Court for the Central District of California in Los Angeles, music group The Turtles triumphed over Sirius XM Radio, Inc., the largest radio broadcaster in America. Flo & Eddie, Inc., owned by founding members of The Turtles, filed a class action suit against Sirius alleging $100 million dollars in unpaid royalties for performance of pre-1972 recordings, including The Turtles’ chart-topping song “Happy Together.” At issue in the case was whether ownership of pre-1972 sound recordings includes the exclusive right to publicly perform the recording. The court granted Flo & Eddie’s motion for summary judgment, ruling that Sirius infringed the band members’ copyrights under California law and creating “a legal earthquake in the music industry,” according to The Hollywood Reporter.

While the decision raised more questions than it provided answers, on October 15, Sirius was dealt an even bigger blow in a similar California case brought by the Recording Industry Association of America (RIAA), which controls recordings by such iconic artists as The Beatles, The Rolling Stones, and Bob Dylan, among others. Together, the two cases are generating a lot of buzz about a sea change on the horizon that could lead to a major overhaul in the way music is licensed and support for proposed legislation establishing performance royalties for recordings made before 1972.

When Congress passed the Federal Copyright Act in 1976, it expressly stated that song recordings fixed before February 15, 1972, were unaffected. As a result of this carve-out from preemption by federal law, public performance of songs recorded before 1972 is not protected by federal copyright law, and the only element of a pre-1972 sound recording offered federal protection was the underlying composition. This loophole in federal copyright protection created a patchwork of state common law doctrines designed to prevent creation of pirated copies of recordings.

In its case against Sirius, Flo & Eddy argued that California’s Civil Code provides for “exclusive ownership” to the author of sound recordings fixed prior to February 15, 1972, and that ownership right includes the exclusive right to public performance. While Sirius argued this statutory interpretation was too broad and in opposition with legislative intent because public performance is not expressly mentioned in the Civil Code, the court found that a plain reading of the text supports that sound recording ownership is inclusive of all ownership rights that can attach to intellectual property, including the right of public performance. The court agreed in RIAA’s case against Sirius, further emphasizing the legislature specifically adopted only one exception to the exclusive ownership of recordings, namely the recording of “cover” songs, and no such exception was adopted for public performance.

Sirius stated it would be happy to pay older artists, but that the change in the law should be coming from the legislature and not from the bench. The satellite radio giant may just get its wish if the RESPECT Act (H.R.4772) is passed. The bill introduced earlier this year would require digital radio services to pay royalties to classic artists, and has generated widespread support from recording legends through the Project 72 movement. With the pending bill, imminent appeals from Sirius in both recent California cases, and multiple cases pending against Pandora Internet Radio, it could be some time before the recording industry and digital radio are happy together.


Thomson-Reuters just released the 2014-2015 editions of Kinney & Lange’s Intellectual Property Law for Business Lawyers and Intellectual Property Laws and Regulations books.

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