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Pre-1972 case given class action status

By | Published on Thursday 28 May 2015


The Pre-1972 Thing, as I’d like all lawyers to now call it, continues to roll forward in the US, with a judge giving Flo & Eddie’s legal battle with Sirius XM in California class action status, meaning that any ruling in the musicians’ favour can be extended to anyone else owning sound recordings that pre-date 1972 which have been played by the satellite radio service. Which could make the damages payout massive.

As previously reported, under US-wide federal law, there is no general ‘performing right’ for sound recordings, meaning AM and FM radio stations do not need to get licenses from or pay royalties to the record labels. However, federal law does oblige satellite and online radio services to secure such a license, though they can do so via the SoundExchange collective licensing system.

But federal copyright law only directly protects sound recordings made since 1972; any recordings released before that year are protected by state law. So Sirius decided that its specific obligations under federal law to pay royalties to labels couldn’t apply to recordings that pre-date 1972.

Some artists and labels then started to argue that the obligation to pay royalties also existed under older state copyright laws as well. Even though those laws make no specific distinction between traditional radio and satellite/online radio, so if Sirius was obliged to pay royalties, so would AM and FM oldie stations, none of which had ever paid the labels any money for the pre-1972 music they play.

Because of that anomaly, Sirius (and Pandora, which has also been sued on this matter) was confident of a court win. But then the Californian courts sided with the music industry, and a New York court indicated it would do likewise. The latter specifically noting that just because the labels had never enforced this apparent state level performing right against AM/FM radio stations, didn’t mean they couldn’t now enforce it against Sirius.

So that’s all fun. While the labels and SoundExchange have gone legal on this issue too, the highest profile cases have been led by Flo & Eddie, who as members of 1960s group The Turtles have a vested interest in all this. And having won the Californian case last September, the duo pushed for their case to be given class status, meaning any other labels and musicians with pre-1972 recordings would be due royalties from Sirius. And yesterday the judge overseeing the Californian proceedings granted that request.

Sirius, which is appealing most of the rulings against it on this issue, argued against the Flo & Eddie litigation having class action status on procedural grounds, but the judge wasn’t having any of it.

Lobbying is underway, of course, for statutory clarification on this matter, most likely by extending federal copyright protection to all sound recordings still within their copyright term, while the labels would like a wider general performing right added to federal copyright rules as well. Though all that could take quite some time to go through the motions, and meanwhile the slightly confusing legal wranglings at a state level will continue. And Sirius might have to write some big cheques along the way.