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Music firm takes AM/FM radio to court over pre-1972 recordings
By Chris Cooke | Published on Tuesday 1 September 2015
So, this was inevitable, but is nevertheless very interesting. A company that owns a catalogue of golden oldie recordings, including tracks by Al Green, has filed lawsuits in both California and New York against US radio giants CBS, iHeartMedia and Cumulus, claiming the broadcasters are infringing its copyrights by playing pre-1972 repertoire without licence.
This, of course, is the logical conclusion on the ongoing legal battle between the US record industry and Sirius and Pandora over pre-1972 recordings.
As much previously reported, unlike in most other countries, under federal copyright law Stateside there is no general performing right as part of the sound recording copyright, so that AM/FM radio stations do not need a licence from, or to pay royalties to, record companies, though they still need to pay royalties to songwriters and music publishers.
There is, however, a digital performing right as part of the sound recording copyright, meaning both Sirius and Pandora (and their rivals) have to pay both labels and publishers. But, federal copyright law only applies to recordings released since 1972, with state copyright laws protecting older tracks.
It had always been assumed that the same principle applied to these older recordings – ie royalties were due to publishers but not labels – and because state laws make no distinction between traditional and digital radio channels, Sirius and Pandora decided that while they were obliged to pay record companies for post-1972 records, no money was due for older tracks.
However, as we know, 1960s outfit The Turtles proved that theory wrong, in the states of California and New York at least, where judges ruled that there actually was most likely a general performing right for the sound recording copyright in those states, even though no recording artist or record label had ever enforced that right before.
There remains some debate around quite what state laws say here, though, as also previously reported, Sirius settled with the majors on this point back in June, suggesting it reckons royalties are probably due pre-1972.
But, given the one thing we know for certain is that state law doesn’t distinguish between AM/FM and satellite/online radio, if Sirius and Pandora have to pay royalties to play 1950s and 1960s catalogue, then so should traditional radio stations, even though they have gone decades without doing so. Which brings us to ABS Entertainment’s lawsuits against CBS Radio, iHeartMedia and Cumulus.
The firm actually went legal in California in mid-August, and added a second lawsuit in New York State last week. The suits accuse the radio firms of infringement of ownership rights, and misappropriation of ownership and property rights, and seek multi-million dollar damages. Which might not sound like much in the wider scheme of things, though that would just be for ABS’s relatively modest catalogue of pre-1972 recordings, and if the music firm was successful, it could open the broadcasters up to litigation from a plethora of other labels.
It is thought that this litigation could get held up as the Sirius/Pandora lawsuits continue to go through the motions, though, according to The Hollywood Reporter, one of the lawyers working on this case also worked on the Turtles’ lawsuits, so he is presumably fully up to speed with what is going on there.
The radio firms are expected to strongly argue against the suggestion they need licences to play pre-1972 sound recordings, with CBS Radio already saying it will “vigorously defend” the lawsuits.
Those labels with new artists as well as golden oldies catalogue might be wary of going into full-on war with the big radio players, airplay still being an important marketing tool even in this online-playlist-social-media-streaming-service age. Though, as the labels push once again for a full performing right for sound recordings at a federal level, the possibility of liabilities for the past use of pre-1972 tracks at a state level may provide useful leverage.
So, this remains a very interesting ongoing story indeed. And for a more in-depth summary of the story so far, our trends article on pre-1972 is still available for free to all here.
