By Sammi Elefant


Most of us can agree that whether it was recorded in 2016 or in 1964, music has exceptional value. However, the current status quo of copyright laws in America deem legacy artists such as Elvis Presley, The Beatles, and The Beach Boys among many others, as not eligible for royalties when “publicly performed” on the radio. The artists themselves, or representative recording companies have been going after digital music firms such as Sirius XM and Pandora in a series of class-action lawsuits arguing that federal copyright law should be amended to include protection to sound recordings authored prior to 1972. For the past decade or so, it has become an accepted business practice that none of these digital music services are paying royalties for public performance of these legacy artists.


The recent decisions in New York and California finding that pre-1972 recordings are protected under state law is still a matter of contention. In the case of Flo & Eddie Inc. v. Sirius XM Radio Inc.[1], Flo and Eddie of The Turtles, argued that since federal copyright law protects post-1972 sound recordings, it’s up to state laws to protect works authored prior to that year. It was discovered that SoundExchange, a digital performance rights organization that collects money from SiriusXM, excluded gross revenue calculations on pre-1972 recordings. The Turtles, convinced the presiding judge in California that their performance rights were violated. This small victory is beginning to narrow in on the issue of whether copyright owners have exclusive performance rights.


A New York judge followed this California ruling and the case was subsequently taken up to the New York Court of Appeals. However, the appeals court dodged the opportunity to hand down a definitive ruling. Although the primary issue at this point is an interpretation of state laws, Don Verrilli, former solicitor general for the Obama Administration, predicts that it is likely to reach the Supreme Court soon. The implications of how the laws are interpreted could theoretically mean that bars, restaurants, sports stadiums, and hotels, would lose the right to perform the early works of Bob Dylan, The Rolling Stones, and others without obtaining a license to do so.


The history of copyright law in America is a long and complicated one. In 1905, President Theodore Roosevelt urged for a complete revision of the Copyright Act of 1790. He stated in a message to Congress: “Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public.”


Roosevelt signed the new Copyright Act of 1909 into law making several changes to the older laws. This Act was designed less for the benefit of the author/creator and more for the benefit of the consuming public. Although sound recordings still fell outside the realms of federal statutory protections, they remained eligible for state common law protections. Arguably, this was because the technology that makes it easy for the unauthorized replication of sound recordings today, did not exist. There was no need to afford copyright protection, if there was no way to illegally duplicate the recording.


Once tape recorders and cassettes were developed, law makers began to acknowledge music piracy as a serious threat. Congress responded to this new technology by amending Roosevelt’s 1909 Act. However, this amendment was forward-looking, as it only included sound recordings created after February 15, 1972. Any recordings created prior to this date would remain subject to state laws. This two-pronged copyright system is still in existence today.


The Digital Millennium Copyright Act (DMCA) complicates things slightly with its safe harbors provision. Section 512 of the DMCA contains safe harbor provisions for online service providers, such as digital music firms. These provisions could potentially shield providers from copyright infringement as long as the provider establishes “effective notice and takedown” procedures. In other words, if the provider promptly removes content when a copyright owner notifies it of infringement, and had no material knowledge that the content was infringing, the provider is likely to be protected under the DMCA.  In the Sirius XM case, it was found that The Turtles relied on another California case that targeted Bluebeat, a website that attempted to use §114 of the Copyright Act to, inter alia, sell twenty-five cent songs by The Beatles. The judge in this case found Bluebeat liable for misappropriation. The second case used by The Turtles that swayed the New York judge in their favor was litigated in the Second Circuit and held that Grooveshark, a music streaming website, could not take advantage of the DMCA safe harbors provision to defend against charges of pirating pre-1972 sound recordings.


SiriusXM reached a $210 million settlement with members of the Recording Industry Association of America in the aftermath of the class action won by The Turtles. However, this settlement provides a license to SiriusXM that is valid only through 2017. The digital music firm will still have to renegotiate with recording companies, and this could possibly bring about future litigation.


What is at stake here is the value we place on our creative artists. Just as lawyers capitalize on the content of their arguments, so too should artists be afforded the ability to monetize the content of their creative composition. Without Elvis, Woody Guthrie, Chuck Berry, and Bob Dylan there would be no Bruce Springsteen. In music, there is no such thing as the past or the present – every great artist of today was influenced by a great artist of yesterday. Given the rotation of the issue through the state court systems, the Supreme Court should have a strong interest in hearing it. Artists create for the consumer, if the Copyright Act is amended to federally protect all sound recordings in our cannon, it would be a win-win for legacy artists and consumers alike.


Student Bio: Sammi is a 2L at Suffolk University Law School. Sammi is also a staffer on the Journal of High Technology Law and a member of the Sports & Entertainment Law Association.


[1] Flo & Eddie Inc. v. Sirius XM Radio Inc. 62 F.Supp.3d 325 (2014).


John Lennon and Paul McCartney: Recording ‘Hey Bulldog’, Studio 3, Abbey Road Studios, February 11, 1968. Photo by Ringo Starr:


Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.


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