On Friday, November 14, a New York federal judge handed members of the band the Turtles another victory in their push to get paid for digital radio plays of music they recorded before 1972.
Judge Colleen McMahon of the United States District Court in Manhattan said no-go to SiriusXM’s motion for summary judgment (a move to dismiss the suit), giving the satellite broadcaster until Dec. 5, 2014 to dispute remaining facts. This means that SiriusXM can be held liable for copyright infringement.
As we have previously explained, this case—as well as earlier rulings in California and pending lawsuits against Internet radio company Pandora—arose due to a weird loophole in federal copyright law.
Currently, recordings made before February 15, 1972 do not enjoy federal protection, as there was no federal copyright for sound recordings until Congress passed a bill on that date. However, this legislation did not apply retroactive protections, which means older sound recordings are covered by a patchwork of state statute and case law.
In some states, like California and New York, courts are finding sufficient justification for performance rights to apply to pre-‘72s. How broad that application is remains to be seen: will recent interpretations of state statute also extend to performances of older recordings on AM/FM radio, which is not federally obligated to pay any performers or labels, pre-’72 or otherwise? And what about states without well-defined (or any) copyright provisions? Some areas of common law may be relevant, but the protections are hardly uniform. And litigation is expensive.
Keep in mind that we’re only talking about performance royalties for sound recordings (think music captured on tape or hard drive). Internet and satellite radio do pay songwriters and composers for the underlying musical work (think lyrics and notes on paper), as does AM/FM radio.
Members of the Turtles have brought cases against SiriusXM in California, New York and Florida, seeking class-action status and $100 million in damages. An earlier ruling in a California federal court supported the Turtles’ claims. The New York decision hands them another victory.
According to Judge McMahon, “In short, general principles of common law copyright dictate that public performance rights in pre-1972 sound recordings do exist.”
Here at FMC, we believe that all artists should be compensated for the use of their music on any service. This includes AM/FM radio, which enjoys an unfair exemption in federal law.
Like many, however, we wonder if these rulings may create turbulence in the short-to-medium-term. Remember, radio isn’t the only place where sound recordings are performed. Venues such as clubs, restaurants, sports arenas, etc., are currently not required to pay sound recording performance royalties, though they do pay composers and songwriters via ASCAP and BMI. At some point, it may be necessary for Congress to look at the whole ball of wax.
Judge McMahon recognized the possibility of greater uncertainty, but suggested that it isn’t really her concern. “The broader policy problems are not for me to consider,” she wrote. Well, that’s basically what we live for here at FMC.
One policy solution has already been proposed. The Respecting Senior Performers as Essential Cultural Treasures Act (RESPECT Act; H.R. 47720) was introduced in the outgoing Congress, and has some support in the rightsholder community. This legislation would require digital music services (webcasters, satellite radio, etc.) to pay royalties for sound recordings made before February 15, 1972, in the same manner as they pay for newer recordings—under the statutory license in Section 114 of the United States Copyright Act.
We have said that this bill is a step in the right direction that doesn’t go far enough. We absolutely agree with the bill’s sponsors that performers and copyright owners should be compensated for sound recordings made before 1972. But we think the best way to do that would be to give those recordings the full protection of federal copyright law, as the Copyright Office has recommended. Among other things, this would mean that senior artists could get the opportunity to reclaim their rights to those early recordings.
There is the possibility that the new Congress will re-introduce the RESPECT Act to greater support. If so, it may be possible to implement this stopgap measure on the road to achieving the full range of federal protections that our older performers deserve.
We’ll be tracking developments.