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Flo & Eddie follow up win in Sirius lawsuit by suing Pandora

By | Published on Friday 3 October 2014

Flo & Eddie

On a roll after their recent legal win against Sirius XM, Flo & Eddie, once of The Turtles, have now filed litigation in California against Pandora.

As previously reported, Flo & Eddie’s lawsuit against satellite radio firm Sirius centred on the legal debate over whether or not American satellite and online radio services need to pay royalties to record labels for playing tracks that pre-date 1972, like, say, The Turtles’ biggest hits.

Federal law in America is pretty clear that such services do need to pay royalties for post-1972 recordings, usually via the SoundExchange system, but generally federal copyright law doesn’t apply to recordings from before that date. But should it in this case? And if not, what does state copyright law, which protects pre-1972 records, say about satellite and online radio. Of course it says nothing about satellite and online radio, so what can we imply?

The labels and SoundExchange have also gone legal on this issue, but it was Flo & Eddie’s lawsuit against Sirius that reached court first, with a Californian judge ruling in their favour, saying royalties were due on the pre-1972 catalogue, in California at least. As Pandora is covered by the same rules, it’s not surprising that the musical duo are now pushing for a similar ruling to be made against the personalised radio service, which followed Sirius’s lead in deciding royalties need not be paid on pre-1972 recordings.

According to Billboard, the new lawsuit reads: “Pandora understands that having a vast range and array of music is critical to the success of any music service which is why pre-1972 recordings constitute a significant part of the music service. [But] Pandora is aware that it does not have any license, right, or authority to reproduce, perform, distribute or otherwise exploit via the music service any pre-1972 recordings (including The Turtles’ Recordings)”.

It’s not the first pre-1972 lawsuit Pandora has been hit with, though it is the first one in California. It will be interesting to see if the digital firm looks to settle out of court given the ruling in the recent Sirius case. For it’s part, the digital firm has said it would welcome clarity from law-makers on the status of pre-1972 recordings with regards federal law, saying it wouldn’t necessarily object to federal rules on digital music being applied to the entire sound recordings catalogue, as long as it was done in a fair way. Digital services also enjoy some protections under federal copyright law.

In related news, the CFO of Sirius XM, David Frear, has confirmed at an finance conference that the company will appeal the Flo & Eddie ruling, adding that the recent judgement seemed to say that “every AM/FM station, bar, restaurant, stadium, internet webcast or satellite guy has been operating in violation of California law since 1982 [and yet] not one case [has been] brought by one act ever”.

Though, according to the Wall Street Journal, he too said he’d not necessarily object to the royalties set out in federal law being extended to pre-1972 tracks if done in a fair way.