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Final ruling in Flo & Eddie lawsuit against Pandora provides overview of the pre-1972 copyright debate

By Chris Cooke | Published on Tuesday 1 August 2023

The US district court for the Central District Of California last week published a judgement that provided a pretty extensive overview of what was a big legal debate in the US music industry for a time: whether online radio services like Pandora and Sirius were obliged to pay royalties when they played pre-1972 recordings.

A lot of that debate centred on lawsuits pursued by the artists Flo & Eddie, who were members of the 1960s band The Turtles.

In theory, the 2018 Music Modernization Act removed the ambiguities that those lawsuits sought to address. However, some technicalities remained in relation to Flo & Eddie’s litigation, meaning the lawsuit against Sirius rumbled on until 2021, and the Pandora dispute until last week. Ultimately the courts sided with both Sirius and Pandora.

US-wide federal copyright law is unusual in that it doesn’t provide a general performing right as part of the sound recording copyright, meaning AM/FM radio stations do not need a licence from or to pay any royalties to the record industry.

However, there is a digital performance right, which means satellite and online radio services do need to get licences from the record industry. Though they can – if they wish – rely on the compulsory licence administered by Sound Exchange.

But federal copyright law only applied to sound recordings released since 1972, with earlier recordings protected by state-level laws.

So Sirius and Pandora decided that they weren’t obliged to pay royalties when they used pre-1972 recordings. Because the digital performance right in federal law didn’t apply, and there were no performing rights at all in state-level copyright rules.

For their part Flo & Eddie – and later the record industry at large – disputed that latter assumption. In many states, copyright rules were somewhat ambiguous about whether the performance of sound recordings required a licence. AM/FM radio stations had never sought any such licences and had never been sued, but maybe a performing right did exist in state-level copyright law, even though no one had ever enforced such a right.

Flo & Eddie went legal in multiple states, with their lawsuits ultimately going before a number of different district courts and appeal courts. Initially, the rulings on whether or not performing rights applied to sound recordings at a state level differed from state to state. The Californian courts suggested for a time that maybe such a right did exist. However, ultimately, in other states, judges ruled that they did not.

All of these debates were rendered redundant to an extent by the MMA in 2018. Because – among other things – it specifically said that pre-1972 recordings should benefit from the same digital performance right as post-1972 recordings, thus Sirius and Pandora do need to pay royalties when they use older music.

Nevertheless, some of the litigation rumbled on. In part because Flo & Eddie pointed out that, in order to make their pre-1972 recordings available, Pandora had also made copies of those tracks, meaning the more clear-cut reproduction element of the copyright had also been exploited.

But either way, ultimately the courts, including in California, have generally concluded that there probably aren’t any performing rights for recordings within state-level copyright law; that it’s the performing rights that are relevant with services like Sirius and Pandora; and that the MMA means the negative impact these conclusions may have on artists have already been addressed.

Issuing a summary judgement in Pandora’s favour last week, the Californian court noted: “The court is inclined to agree with Flo & Eddie … with regard to Pandora’s permanent copies. It is commonly understood that one infringes a copyright owner’s reproduction right by making one or more unauthorised copies or phonorecords ‘even if [they are] used solely for the private purposes of the reproducer, or even if the other uses are licensed'”.

“But courts across this country that have considered the issue do not agree”, it went on, “finding instead that Flo & Eddie’s copying claims rise and fall with the public performance right”. And, it added: “To the extent Flo & Eddie argues that New York and Florida common law do not inform the outcome of this matter under California law, its reasons are unpersuasive”.

As for the key question as to whether sound recordings enjoy performing rights under state law, last week’s judgement observed: “One after another, federal circuit courts and state supreme courts answered with a resounding ‘no'”.

So that’s that then. Is the long-running debate over the copyright status of pre-1972 recordings in the US finally at an end? Maybe. We’ll see.