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New lawsuit extends reach of pre-1972 debate

By | Published on Monday 26 January 2015


So the whole pre-1972 thing Stateside was ramped up last Thursday with a new lawsuit on the issue that expands the list of defendants somewhat, and which seeks class action status. So that’s fun, isn’t it?

Quick recap. US-wide federal copyright law in America only covers sound recordings made since 1972. Recordings from before that date get copyright protection from state laws.

Federal law says that AM/FM radio stations do not need to pay royalties to the labels for the recordings they play, but that satellite and online ‘radio’ services, which include Pandora-style streaming set-ups, do. But what about pre-1972 recordings, which aren’t covered by federal law, what’s the rule there?

Well, AM/FM radio has never paid royalties on pre-1972 catalogue either, so many satellite and online radio services decided that – given the specific royalties obligation under federal law surely didn’t apply – they also didn’t need to pay royalties when they played golden oldies.

Which seemed like a logical conclusion to satellite broadcaster Sirius and leading online service Pandora, but the agency that collects the federal royalties (SoundExchange), the major labels (via the Recording Industry Association Of America) and the artist community (mainly Flo & Eddie, formerly of 60s combo The Turtles) did not concur.

They all argue that a general public performance right exists for sound recordings under state laws (specifically in California, New York and Florida), and just because it’s never been enforced against AM/FM radio stations (and anyone playing said recordings in public), that doesn’t mean the right can’t be enforced now. And despite Sirius and Pandora starting off in a bullish mood in this dispute, key court rulings last year in both California and New York went mainly in the music community’s favour.

And now a new lawsuit, filed by the label division of American media firm Zenbu, is accusing a bunch of other Pandora-type services, including Rdio, Slacker, Apple’s iTunes Radio and Google-owned Songza, plus Grooveshark and Sony’s streaming service, of also infringing its rights by streaming the pre-1972 recordings it controls without a licence.

The specifics of the case aren’t yet clear, though a key element is its bid to become a class action. Zenbu itself represents a small catalogue of pre-1972 tunes from the likes of The Flying Burrito Brothers, Hot Tuna and New Riders Of The Purple Sage, but if the lawsuit could become a class action, then many, many more labels and artists could claim damages.

It remains to be seen how this all turns out, but Zenbu’s action assures that the pre-1972 issue will continue to generate some lively debate in the American music and digital communities throughout 2015. For an in-depth overview of the pre-1972 debate check out the most recent issue of the CMU Trends Report.