I have been thinking a lot about Flo and Eddie (Mark Volman
and Howard Kaylan a/k/a the Turtles) and their recent victories over Sirius XM
Radio in California and New York. Although subject to appeal, both these cases
have established the principle of a digital
public performance royalty available to the owners of sound recordings in those
states which recognize these rights fixed in sound recordings prior to
February 15, 1972.
What does
this mean?
The U.S.
Copyright Act provides for a public performance royalty (from digital
transmission) to be paid to owners of sound recordings created after
February 15, 1972. This right led
to the creation of Sound Exchange and all of those current arguments about how
little Spotify, Pandora and the other streaming services are paying to
recording artists.. For reasons that I
cannot recall, the Act excluded those recordings created prior to
February 15, 1972 but allowed the owners of those recordings to pursue
common law remedies under state law against infringers. This is one of the few areas not preempted by
federal law under the Copyright Act.
Historical
trivia: Neil Young's "Harvest"
was released on February 14, 1972 – (one day before the law went into
effect).
Several
states such as California, New York and Florida have laws on the books that
give protection to owners of sound recordings (Tennessee is currently looking
at updating its law). California law is
pretty clear. The relevant section of
California Civil Code § 980(a)(2) reads as follows:
The author of an original work of
authorship consisting of a sound recording initially fixed prior to
February 15, 1972 has an exclusive ownership interest therein until
February 15, 2047 as against all persons except one who independently
makes or duplicates another sound recording that does not directly or
indirectly capture the actual sounds fixed in such prior recording, but
consists entirely of an independent fixation of other sounds, even though such
sounds imitate or simulate the sounds contained in the prior sound
recording.
The court
in the California case agreed that the language gave Flo and Eddie the right to
pursue an infringement action against Sirius Radio for digitally transmitting
the Turtles' recordings and accordingly gave them a summary judgment on this
particular issue.
Note that
this judgment applies to the State of California. How that judgment works out on a national
basis in practice is open to debate. The
plaintiffs have won a similar case in New York and my understanding is that they
are pursuing a case in Florida as well.
Shortly
after the decision a friend of mine asked what ramifications this decision
would have for other "heritage" artists such as classic country artists
whose recordings are played on other
Sirius XM stations. Ultimately, my gut
feeling is that the effect will be minimal for the reason that the Turtles
(unlike the vast majority of recording artists from that era) own their master
recordings. The master recordings of
most other artists are owned by record companies – major labels and/or once
independent companies who were absorbed by major labels. I have no idea what is going on behind closed
doors but I am going to assume that the majors don't have any interest in suing
satellite radio – one of their de facto partners in promoting music. The smaller independents or artists who might
own their own back catalogs may not have the resources to take on such a battle
on their own.
Nonetheless,
Flo and Eddie have won an impressive and important battle because they addressed
an issue that everyone knew was
blatantly unfair and they have claimed a moral and economic victory.This is not
the first time they have gone to Court
to take a stand for artist’s rights and we all owe them a debt of
gratitude. It seems absurd to treat
artists and the owners of sound recordings different due to an arbitrary
date. I don't know if this will
ultimately be resolved through Congress, the courts or a grand compromise but
the issue is now unavoidable. Congratulations
to Flo and Eddie for taking it on.
