The saga of Flo & Eddie seeking performance royalties for the pre-1972 sound recordings of their old band, the Turtles, seems to be finally reaching its end. For years, they have sued both broadcasters and digital media companies trying to exploit an ambiguity in copyright law over the status of pre-1972 sound recordings – songs as recorded by a particular band or artist before February 1972 when sound recordings first became subject to federal copyright law. While federal law still only conveys a performance right in sound recordings when those recordings are performed as a digital audio performance (e.g., through a streaming service or digital cable transmission), Flo & Eddie had argued that pre-1972 sound recordings remained covered by state laws, that some of those state laws provided a performance right, and that this performance right extended to all performances, not just digital ones. Courts in other states had rejected that argument (see our articles on decisions in New York, Florida and Georgia), but the question of the status of the law remained unresolved in California. A court decision last week helps to resolve that issue, though intervening events have lessened its impact, so the decision has gone relatively unnoticed despite the extensive prior coverage previously devoted to this subject.
The decision was one of the 9th Circuit Court of Appeals, specifically related to XM Sirius royalties. In the decision, the Court conducted a searching review of the history of copyright law’s treatment of sound recordings, and found nothing in that history that would suggest that the California legislature, when adopting its law giving a creator the “exclusive rights” in these recordings meant to convey a public performance right in a sound recording – noting that the first use of that exclusive right language was in the 1870s, before there were sound recordings. The Court analyzed all the decisions in the interim and found none that suggested that there was a common law or California statutory right that created a public performance right in these recordings. There was no suggestion that the California legislature had intended to depart from the practices that have otherwise generally applied throughout the US where no performance right has been paid for sound recordings except for the digital performance right that was adopted by Congress in the 1990s. The Court did note that, since the case first began, the Music Modernization Act extended the federal performance right in digital performances to pre-1972 sound recordings. So, the Court’s decision was limited in its application to disputes about whether a digital performance royalty was due for performances before that extension. But there was one other issue not mentioned by the Court that makes this decision relevant to everyone who performs sound recordings even in a non-digital context, including broadcasters.
If the Court had found a performance right existed under state law, the next argument would be that, since these rights are creations of state law, the limitations under federal law that limit such rights might not apply. Under federal law, the sound recording performance right applies only to digital audio recordings. But if the Court had found a state law performance right in sound recordings, that right could be deemed unrestricted. Thus, one could argue that radio stations or bars and restaurants or sports stadiums that play pre-1972 sound recordings in California would have to pay a performance royalty to the artists and record companies that own these copyrights. In fact, we wrote about Flo & Eddie making exactly that argument against radio broadcasters in California.
Thus, by determining that California law is no different than the law of any other state, and that there is no performance royalty owed under California state law to copyright owners of pre-1972 sound recordings, the Court has made the world safe for oldies radio, retro-sock hops, big band dance parties, and 50s and 60s music at various burger joints throughout the state (at least from having to pay artists or record labels – though the composers still need to be paid through ASCAP, BMI, SESAC and other performing rights organizations). Of course, the Court’s decision could still be appealed, but it would seem that this decision, being in line with those of courts across the country, might well spell the end to the debates over pre-1972 sound recordings.