photo: Daniel Borker
Should copyrights extend to pre-1972 recordings? The California Supreme Court won’t decide on this critical oldies copyright issue until next year.
It’s a matter that affects virtually every oldies artist. Not to mention their estates. But it looks like we’re gonna have to wait for any momentous decisions on this one.
For those just tuning in: a series of court battles have been waging between ‘oldies’ artists and streaming services like Sirius XM and Pandora. At root is whether those services should pay royalties for anything released before February 15th, 1972, the date that federal-level copyright protections started covering recordings.
Just last week, plaintiffs ‘Flo & Eddie’ of the oldies group The Turtles suffered a devastating blow. The Supreme Court of Florida decisively ruled that no copyright exists for songs recorded and released before the ’72 cutoff. There’s simply nothing in the Florida law books, the justices ruled.
+ Breaking: Florida Supreme Court Rules That Oldies Recordings are Public Domain
That followed an equally decisive decision in New York, all of which is shifting the spotlight towards California. Enter the California Supreme Court, which effectively has the power to eliminate pre-1972 copyright recordings entirely with a concurring decision.
Or, plunge the entire pre-1972 copyright landscape into utter chaos with a contradictory ruling.
Legal chaos sounds great for lawyers and billable hours. Not so great for the industry, which typically thrives on cohesive, uniform rules.
+ US Copyright Office Listed Fake $25 Million Budget Item
So how will the California justices opine?
For that, we’re going to have to wait at least another year. According to legal paperwork shared with Digital Music News, lawyers for Pandora have requested an extension of time for a critical filing. That filing is now due December 13th, which almost guarantees delays into 2018.
Currently, the case has not been given a firm start date on the Supreme Court’s docket. And as any lawyer can attest, big cases in big courtrooms have a way of dragging on forever.
Unlike the New York and Florida debates, the California decision will consider a separate, 1982 law that vaguely discusses ownership rights. Back in 2014, Flo & Eddie scored a victory by convincing lower court judges that this law granted copyright protection to pre-1972 works. But Pandora has argued that it’s unlikely that lawmakers intended to grant fresh copyrights to works already in the public domain.
All of which suggests that legislatures, not courts, are the best place to decide this matter. But even if the Supreme Court of California rules in favor of pre-1972 protection, other states have clearly plunged oldies recordings into the public domain. And without a pre-1972 federal statute, a patchwork of different state laws could be the end result.
Stay tuned.
Seems pretty clear there is State Copyright
In Sound recordings. Looking at the CA law:
Cal. Civ. Code § 980(a)(2). Section 980(a)(2) provides:
The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership 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 recapture 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.
That’s it. I’m out. This is the definition of fake news. Paul won’t stop saying that there is no copyright for pre-72 sound recordings in the state of Florida which is patently false. There is no shortage of actual reporting on this issue. I’m going to go read that.
Please, consider searching for the real issue instead of blanket pronouncements. The issue is not copyright yes or copyright no.
The question is whether or not those state copyright laws cover the performance of the works in addition to addressing their tangible reproduction. The latter is clear; the former is not.
Traditionally, in the US, sound recording owners had limited rights relating to performance of their works. Over the past decade or two, digital delivery of sound recordings has been addressed by statutes and rules in a manner that exacts performance fees when they are transmitted over the net. Now the plaintiffs say that for many decades sound recording companies have been entitled under state law to collect that which was previously reserved in the US for song writers, money generated by licensing AM/FM/Satellite radio services.
Do those state copyright laws covering pre-72 sound recordings apply in a way that requires performance rights payments when transmitted over terrestrial or satellite radio? Could those state copyright laws written so long ago to address physical piracy also now, for the first time, be used to exact performance fees from terrestrially-broadcast radio services? If so, why wasn’t this argument pursued more than 50 years ago?
Florida says no. New York says no. California has yet to make a final decision.
In a truly global networked world, is there anyone who thinks this is properly a matter for individual states? At its smallest, this matter is truly Federal, these transmissions obviously crossing state lines, but copyright plaintiffs have been known to ignore reason in pursuit of making a point and potentially another dollar in license fees.
A suggestion: Pass Fair Play or a similar federal law federalizing pre- and post-72 sound recordings alike, placing their performance licensing in the hands of Sound Exchange, which is the group that already handles sound recording licensing to these exact same AM/FM entities when they broadcast over the Internet.