When Danny and the Juniors sang “Rock and Roll Is Here to Stay,” they had no idea how prophetic their lyrics were. Many AM and FM stations around the country offer Oldies formats, and Sirius XM, the satellite radio provider, has several channels dedicated to Oldies.
SiriusXM’s cost of doing business may go up as a result of a class action lawsuit claiming that SiriusXM has infringed the copyrights of older recordings from thousands of artists. Damages are alleged to be at least $100 million, but the plaintiff’s attorneys believe that estimate is on the considerably low side.
The lead plaintiff in the action is Flo & Eddie, Inc., the corporation that owns the copyrights to hits from The Turtles like "Happy Together," "It Ain't Me Babe" and "She'd Rather Be With Me." The lawsuit was filed in California Superior Court in Los Angeles, and the key issue at trial is the year 1972, because on February 15, 1972, sound recordings began to receive federal copyright protection. So while there is clear copyright protection for post-1972 recordings, for music recorded prior to that date, the law is not clear at all.
SiriusXM operates on the premise that Section 114 of the Copyright Act permits them to broadcast pre-1972 recordings. The law puts limitations on exclusive rights and establishes how the owners of recordings are to be compensated. The Copyright Royalty Board sets royalty rates for different types of broadcast outlets, such as satellite radio, and the SoundExchange collects the royalties and pays them to the copyright owners.
But The Turtles and the other groups they represent contend that state law applies to pre-1972 music that is broadcast via satellite radio. A 1972 U.S. Supreme Court decision in Goldstein v. California gave deference in copyright disputes to state laws, holding that "Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, the California statute may be enforced against acts of piracy such as those which occurred in the present case."
Another case decided earlier this year by a New York State Court of Appeals ruled that the music streaming website Grooveshark couldn't take advantage of the Digital Millennium Copyright Act (DMCA), a federal law passed in 1996 that incorporates two treaties of the World Intellectual Property Organization (WIPO), as a defense against charges that it was illegally selling pre-1972 sound recordings.
This is not the first time in court for Flo & Eddie, Inc. dba The Turtles. Back in 1971, they sued their record label, White Whale, for accounting irregularities, and ended up owning the rights to the original masters of their music. Many music groups do not own the rights to their own music; it often belongs to the group’s record label. The Turtles have also sued record pirates (companies that sell illegal copies of music), and the group has brought claims against companies that used their songs in advertisements without the group’s authorization.
Besides monetary compensation for the use of their intellectual property, The Turtles are requesting an injunction prohibiting the broadcast by SiriusXM of all pre-1972 recordings.
In its Answer to the Complaint filed by Flo & Eddie, Inc., SiriusXM wrote that “Plaintiff apparently has become aggrieved by the distinction drawn by Congress in withholding copyright protection from its Pre-1972 Recordings; thus now, after decades of inaction while a wide variety of music users, including radio and television broadcasters, bars, restaurants and website operators, exploited those Pre-1972 Recordings countless millions of times without paying fees, it asserts a purported right under the law of various states to be compensated by SiriusXM for comparable unlicensed uses.”
Flo & Eddie, Inc. upped the ante by filing similar lawsuits in New York and Florida.
SirusXM’s response to the additional lawsuit filings was, "As will be shown at a later stage of these proceedings, there is no state law that requires SiriusXM (or any of the hundreds of thousands of other U.S. businesses that publicly perform music) to pay license fees for Pre-1972 Recordings. Plaintiff’s multiple court filings constitute a form of lawsuit lottery in search of an elusive new state-law right that would radically overturn decades of settled practice."