After resounding defeats in both Florida and New York, the battle to save oldies copyrights shifts to the Supreme Court of California.
It’s a simple question: do recordings released before 1972 deserve any copyright protection in the US?
Last week, the Supreme Court of Florida declared that pre-1972 recordings do not enjoy any copyright protection, thereby throwing them into the public domain in the state.
+ Breaking: Florida Supreme Court Rules That Oldies Recordings are Public Domain
That echoed a similar ruling by the Court of Appeals of New York, which similarly found no law protecting pre-1972 recordings. So that’s two huge states, both slapping down copyrights for oldies recordings.
All of which means that the Supreme Court of California now has the power to effectively bury oldies copyright in the United States.
In May of this year, the California high court agreed to hear the case. That followed years of litigation driven by ‘Flo & Eddie,’ the duo behind the oldies group The Turtles. The group’s most famous song is ‘Happy Together,’ which is definitely still getting played today.
Accordingly. Flo & Eddie argued that major digital broadcasters Sirius XM Radio, Pandora Media, and others were wrongfully withholding royalties for pre-1972 recording performances.
But why 1972?
That’s the year that the Dallas Cowboys won Super Bowl VI.
More importantly — at least for this article — is that it’s also the year that a federal copyright law started protecting recordings. Effectively, any recording released after February 15th, 1972, is protected by federal copyright.
Also: it’s important to note that these court battles have nothing to do with publishing, which refers to the underlying composition (notes and lyrics) of a song. Those compositions are protected before 1972, and companies like Sirius pay publishing royalties.
As of today, the California Supreme Court has listed ‘Flo & Eddie vs. Pandora Media, Inc.’ on its docket. That confirms that the matter will definitely be heard, though there’s not a date yet assigned.
Here’s what the official Supreme Court of California docket says:
Flo & Eddie, Inc. v. Pandora Media, Inc., S240649. (9th Cir. No. 15-55287; 851 F.3d 950; Central District of California; No. 2:14-cv-07648-PSG-RZ.) Request under California Rules of Court, rule 8.548, that this court decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. The questions presented are: “1. Under section 980(a)(2) of the California Civil Code, do copyright owners of pre-1972 sound recordings that were sold to the public before 1982 possess an exclusive right of public performance? 2. If not, does California’s common law of property or tort otherwise grant copyright owners of pre-1972 sound recordings an exclusive right of public performance?”
We’re now monitoring any filings on the case, or indication of a hearing date (stay tuned).
Copyright attorneys say that California’s decision will either create clarity or chaos.
Clarity will occur if California’s judges concur with the rulings from Florida and New York. That spells bad news for older recording artists, but great news for companies like Sirius XM. It would also smooth the way for newer entrants concerned about confusing copyright laws like this one.
If the Supreme Court of California grants pre-1972 copyright protection, that could spell serious chaos. For starters, digital broadcasters like Sirius XM are nationwide. They blast the same channels into California and Florida, not to mention the other 48 states. If those states have different rules, expect serious confusion and continued litigation over oldies royalties.
First paragraph is slightly inaccurate. Paints a picture that Pre-72 recordings don’t qualify for copyright protection under state laws. Pre-72 recordings are eligible for copyright protection under state laws but, currently, only for “mechanical reproduction”. Flo n Eddie are asking courts whether they also qualify for public performance rights copyright protection. Informative article otherwise.
Keep in mind that a mechanical is a reproduction is a publishing concern. A performance would cover things like digital broadcast, etc., for the recording only.
There’s a bill for that: Fair Play Fair Pay
The Fair Play Fair Pay Act modernizes music licensing for sound recordings in a comprehensive way. This bill closes the radio loophole while protecting small broadcasters, applies the same fair market rate standard to all radio platforms, and ensures legacy artists are paid for pre-1972 recordings. Tell your rep to support the Fair Play Fair Pay Act so that all radio services play by the same rules and artists and performers are compensated for their work.
As others have pointed out, this is seriously misleading. Nothing is being “thrown into the public domain.” This case is narrowly about a “right of public performance,” as the legal document says. There are plenty of other protections preventing pre-72 recordings from being bootlegged, used in films or commercials, etc. More importantly, why are you championing one group of big corporations (labels) over another (satcasters)? Either way, artists get shafted. Why not have a system like the Europeans, where if a recording copyright “owner” (usually the label) refuses to make an older recording available (and generating royalties for the artist), then the artist can reclaim that recording and exploit it themselves? The vast majority of older recordings are unavailable from the “rights” holder, but are locked up by corporate-held copyrights. Fix that and you’ll help a lot more actual artists than this will.
Hate to say, but this case seems like an overreach. If oldies artists want protection for pre-1972 recordings, they should fight for a law to get that. Seems like courts are pushing back because they are being asked to make a law that doesn’t exist.
And as for the anti-piracy reproduction? That’s also shaky now. It’s predicated on a recording copyright that doesn’t exist. Which means it may be challenged in court if anyone tries to enforce it.