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Pre-1972 issue comes up again in statutory licence litigation against Sirius

By | Published on Friday 6 September 2013

Sirius XM

While the big copyright story in the UK this week involved Ministry suing Spotify over the intellectual property that exists, or not, in curated playlists, in the US mounting legal woes for satellite radio firm Sirius pose some interesting questions about the copyright rules governing sound recordings Stateside.

It’s all about that 1972 thing. In the US, federal copyright law began protecting sound recordings in 1972, prior to which protection came from State laws. So every time a new bit of federal law affecting these copyrights is passed, the same question is eventually posed: does it apply to recordings from pre-1972?

You might remember that Universal Music is suing Grooveshark, arguing that the safe harbours the digital music service always cites when accused of infringing copyright (ie “providing we respond to takedown notices from copyright owners, we can’t be sued, even if we routinely host unlicensed files”) stem from federal law, so can’t apply to the mega-major’s pre-1972 catalogue. The case is ongoing.

Sirius XM likewise benefits from a federal law that says that record companies are obliged to licence their catalogues to satellite and online radio services, paying statutory royalties via the SoundExchange collecting agency. But does that obligation apply to labels when it comes to pre-1972 catalogue, or are direct licences actually needed to play those recordings?

This is going legal thanks to Flo & Eddie, aka Howard Kaylan and Mark Volman, aka the two vocalists with American rock band The Turtles, a band whose heyday predates 1972. In a test case, and class action, Flo & Eddie are claiming that Sirius cannot rely on statutory royalty rates with their catalogue, and other pre-1972 hits. The litigation is being pursued at a state level, with the initial lawsuit filed in California, and subsequent litigation on the same issue launched in New York and, this week, Florida.

Interestingly, this all follows a lawsuit launched by SoundExchange itself last month in which, among other things, the rights body said the satellite radio firm was at fault for basically failing to pay royalties to it on pre-1972 recordings, which make up 10-15% of the network’s output. Through it’s lawsuit SoundExchange seems to think that it is indeed collecting royalties for these older records. And if Sirius doesn’t want to have to negotiate different rates with the likes of Flo & Eddie directly, there’s an argument the satellite firm would be better off making that assumption too.

Sirius is yet to comment.