By Thomas Carey. Chair of the Business Practice Group
Copyright law is full of nooks and crannies, some of which aren’t explored for years or even decades. Recent decisions from courts in California and New York cast a bright light on a seldom considered subject: state law copyright protection.
The Turtles, a California rock group that performed from 1965 – 1970, had their first hit with a 1965 cover of Bob Dylan’s “It Ain’t Me Babe”. Their most successful song, “Happy Together,” reached number one on the charts in 1967. A handful of their other songs made the top ten. Their music lives on, broadcast over the air by Sirius XM and others, and over the internet by Sirius XM, Pandora and others.
Two of the founding members incorporated and own Flo & Eddie Inc., which owns the rights to the master recordings of the Turtles’ music. Federal protection of copyright is based upon the copyright clause of the United States Constitution.
Federal copyright statutes, which generally preempt state law, have protected musical compositions since 1831. But that protection benefited only composers (and their assignees) until February 15, 1972. On that date, an amendment to the Copyright Act, designed to curtail piracy of phonograph records, became effective. This amendment did not give copyright holders the right to prevent others from playing the records for public entertainment (over the air, for example), but prohibited only the unauthorized manufacture of copies of the records.
While this amendment preempted all state law protection for sound recordings to which it applied, it specifically preserved (until 2067) state law protection for sound recordings made before February 15, 1972 (we will call them “Oldies” here). In 1995, the Copyright Act was further revised to provide copyright holders with a right to royalties for playing recorded performances over the air, but only for transmissions in digital form. This right does not apply to Oldies, which are not eligible for federal copyright protection.[1] Traditional analog radio stations have thus been spared the obligation to pay performance royalties when they broadcast recorded music, but as always they must pay royalties that benefit the composers of that music.
As a result, no federal law benefits the Turtles when their performance of “It Ain’t Me Babe” is played on the radio. They did not compose the song and their performance was recorded before February 15, 1972. In fact, commercial radio stations and digital distributors of music such as Sirius XM and Pandora have never paid “performance royalties” for playing Oldies.
It had been accepted wisdom in the music industry that Oldies had no performance-based copyrights under any law, state or federal. For example, the Chairman and CEO of the Recording Industry of America (RIAA) testified before Congress in 1995 that “Under existing law, record companies and performers … have no rights to authorize or be compensated for the broadcast or other public performance of their works.”
That may all be about to change.
In 2013, Flo & Eddie brought suit against Sirius XM in California, New York and Florida, alleging infringement of rights under the copyright law of those three states for the unauthorized broadcast of Oldies. Not to be outdone, major record labels including Sony, UMG and Warner brought suit against Sirius XM in California state court on the same theory.
Sirius resisted the claims by arguing that the relevant state courts had never ruled that state copyright law protected performances of recordings and thus no such protection exists; that well-established customs in the recording and broadcast industries should be respected; and that the founders of the Turtles (and Flo & Eddie), themselves long-time subscribers to Sirus XM radio, had done nothing to assert their rights for decades and should not be permitted to do so after having been silent for so long. Sirius XM also argued that state regulation of national broadcasts would violate the Commerce Clause of the Constitution.
As Sirius XM pointed out, the broadcast and recording industries had for decades operated on the assumption that no law required broadcasters to pay performance royalties for broadcasting Oldies. Were they wrong? Three courts – two in California and one in New York – have recently ruled that they were. (More)
[1]Section 301(c) of the Copyright Act provides: “[N]o sound recording fixed before February 15, 1972 shall be subject to copyright under this title . . .”
The Turtles, a California rock group that performed from 1965 – 1970, had their first hit with a 1965 cover of Bob Dylan’s “It Ain’t Me Babe”. Their most successful song, “Happy Together,” reached number one on the charts in 1967. A handful of their other songs made the top ten. Their music lives on, broadcast over the air by Sirius XM and others, and over the internet by Sirius XM, Pandora and others.
Two of the founding members incorporated and own Flo & Eddie Inc., which owns the rights to the master recordings of the Turtles’ music. Federal protection of copyright is based upon the copyright clause of the United States Constitution.
Federal copyright statutes, which generally preempt state law, have protected musical compositions since 1831. But that protection benefited only composers (and their assignees) until February 15, 1972. On that date, an amendment to the Copyright Act, designed to curtail piracy of phonograph records, became effective. This amendment did not give copyright holders the right to prevent others from playing the records for public entertainment (over the air, for example), but prohibited only the unauthorized manufacture of copies of the records.
While this amendment preempted all state law protection for sound recordings to which it applied, it specifically preserved (until 2067) state law protection for sound recordings made before February 15, 1972 (we will call them “Oldies” here). In 1995, the Copyright Act was further revised to provide copyright holders with a right to royalties for playing recorded performances over the air, but only for transmissions in digital form. This right does not apply to Oldies, which are not eligible for federal copyright protection.[1] Traditional analog radio stations have thus been spared the obligation to pay performance royalties when they broadcast recorded music, but as always they must pay royalties that benefit the composers of that music.
As a result, no federal law benefits the Turtles when their performance of “It Ain’t Me Babe” is played on the radio. They did not compose the song and their performance was recorded before February 15, 1972. In fact, commercial radio stations and digital distributors of music such as Sirius XM and Pandora have never paid “performance royalties” for playing Oldies.
It had been accepted wisdom in the music industry that Oldies had no performance-based copyrights under any law, state or federal. For example, the Chairman and CEO of the Recording Industry of America (RIAA) testified before Congress in 1995 that “Under existing law, record companies and performers … have no rights to authorize or be compensated for the broadcast or other public performance of their works.”
That may all be about to change.
In 2013, Flo & Eddie brought suit against Sirius XM in California, New York and Florida, alleging infringement of rights under the copyright law of those three states for the unauthorized broadcast of Oldies. Not to be outdone, major record labels including Sony, UMG and Warner brought suit against Sirius XM in California state court on the same theory.
Sirius resisted the claims by arguing that the relevant state courts had never ruled that state copyright law protected performances of recordings and thus no such protection exists; that well-established customs in the recording and broadcast industries should be respected; and that the founders of the Turtles (and Flo & Eddie), themselves long-time subscribers to Sirus XM radio, had done nothing to assert their rights for decades and should not be permitted to do so after having been silent for so long. Sirius XM also argued that state regulation of national broadcasts would violate the Commerce Clause of the Constitution.
As Sirius XM pointed out, the broadcast and recording industries had for decades operated on the assumption that no law required broadcasters to pay performance royalties for broadcasting Oldies. Were they wrong? Three courts – two in California and one in New York – have recently ruled that they were. (More)
[1]Section 301(c) of the Copyright Act provides: “[N]o sound recording fixed before February 15, 1972 shall be subject to copyright under this title . . .”
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