flo & eddie

Subscribe to flo & eddie

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.
Continue Reading Court Decision Finds No California Performance Right in Pre-1972 Sound Recordings – Why It Was Still an Issue

Two years ago, a District Court Judge, in a case brought against a broadcaster alleging that the broadcaster owed money under California state law for playing pre-1972 sound recordings, dismissed the suit finding that the broadcaster was playing digitized versions of those songs, created after 1972, which were covered under Federal copyright law (we wrote about that decision here). Yesterday, the US Court of Appeals for the Ninth Circuit issued its decision reversing the District Court’s opinion and sending the case back to the District Court for additional hearings. The Court of Appeals concluded, for several reasons, that there was likely insufficient creativity in the remastering of the pre-1972 sound recordings to make them new post-1972 copyrighted works and that, even if they were creative enough to merit copyright protection as a derivative work, that did not end the discussion, as portions of the original pre-1972 work were included in any new work and those portions themselves had to be licensed. The decision looks like a simple premise that digitization is no magic bullet to defeat pre-1972 sound recording claims, but there is much to unpack in this seemingly straightforward decision.

First, we need to provide a little background on the litigation over pre-1972 sound recordings. Federal law did not recognize a copyright in sound recordings until 1972. So while the underlying musical composition in a song was protected under Federal law, a recording by a particular band or singer was not. When these recordings were federalized, the Copyright Act explicitly left all rights regarding pre-1972 sound recordings in the hands of state law until 2067. For over 40 years, that quirk in copyright law did not seem to have much relevance, though some US digital music services did not pay royalties to SoundExchange for digital performances of those recordings as they were not covered by Section 114 of the Copyright Act (the section creating the statutory royalty for sound recordings). About 5 years ago, the singers Flo and Eddie (formerly of the 1960s band the Turtles) started bringing lawsuits throughout the country alleging that they were owed performance royalties under state law for these pre-1972 recordings from both digital and analog services (see our article here when the first suit was filed). In most states, those suits have been dismissed with courts finding that state law did not provide for a performance right in these pre-1972 recordings (see our articles about decisions in New York, Florida and Georgia reaching that conclusion). The issue in California, however, is still open. For a deeper dive into these issues, see our article here.
Continue Reading Court of Appeals Finds That Digital Remasters of Pre-1972 Sound Recordings Likely Do Not Result in New Copyrighted Work That Would Bring These Songs under Federal Law – Reversing District Court Decision