Last week, a California federal judge declared Flo & Eddie of The Turtles victors in their lawsuit against SiriusXM over the public performance of the duo’s pre-1972 sound recordings. Yes, this is big, big news with major repercussions for the music industry.
The lawsuit, filed in 2013, addressed music created before sound recordings began receiving protection under federal copyright law. Flo & Eddie argued successfully that, despite the lack of federal protection, a California state law passed in 1982 was meant to address and extend protection to pre-1972 sound recordings. On the other hand, SiriusXM had argued that, because Congress did not expressly include pre-1972 sound recordings when it established a public performance rights for sound recordings in 1995, SiriusXM did not have to pay royalties on the pre-1972 sound recordings that appear on its service, and furthermore that the 1982 California law was ambiguous and irrelevant in light of newer federal copyright law and decades of industry activity.
The Court agreed with Flo & Eddie and granted the duo’s motion for summary judgement, effectively ending the case, pending appeal and a trial to determine damages. Of course, this ruling is based on California law; Flo & Eddie, however, are also suing SiriusXM in other states with copyright laws similar to the one in California.
Other litigation based on similar issues is also pending, particularly in one case involving Grooveshark and the application of certain provisions of the Digital Millennium Copyright Act to pre-1972 sound recordings. Look for SiriusXM and Pandora and services like them to aggressively lobby Congress to amend the federal copyright law to address pre-1972 sound recordings, as this most recent ruling will open the floodgates of litigation. In the meantime, this is certainly a victory for musicians seeking additional royalties. But before declaring this a total victory for Flo & Eddie, let’s see how the appeal turns out.