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The Turtles lose pre-1972 battle in Florida

By | Published on Friday 27 October 2017

Flo & Eddie

The big pre-1972 royalty question has been answered in Florida, and one time Turtles Flo & Eddie won’t be getting any royalties when their 1960s hits get played on the radio there, whether that’s terrestrial, satellite or online radio. The state’s Supreme Court has ruled that there is no performing right as part of the sound recording copyright under Florida law.

As much previously reported, US-wide federal copyright law is weird – by global standards – in that it doesn’t provide a general performing right as part of the sound recording copyright, just a much narrower digital performing right.

This means that when records get played on AM/FM radio, the station doesn’t need to pay any royalties to the artist or the label (just the songwriter and the publisher for use of the accompanying song). The digital performing right applies to satellite and online radio services – including personalised radio platforms like Pandora – meaning that those platforms need to pay royalties to artists and labels, as well as songwriters and publishers.

However, US-wide federal copyright law only applies to recordings released since 1972. Older recordings still in copyright are protected by state laws, most of which are somewhat vague as to whether or not a general performing right apply. Though these mainly older state-level copyright rules certainly don’t make any distinction between terrestrial and digital radio.

What we do know is that AM/FM radio has never paid recording royalties on golden oldies either. So, with no specific mention of digital services in the state-level laws, the likes of Pandora and satellite broadcaster Sirius XM decided that while they had to pay royalties to artists and labels on post-1972 catalogue, that wasn’t the case for older tracks.

Many in the music community weren’t impressed with that conclusion however. And to that end Flo & Eddie, former members of 1960s group The Turtles, went legal in three states: California, New York and Florida.

They argued that, actually, there was a general performing right for sound recordings under those state’s copyright regimes, even though no one had ever previously enforced it. Therefore the fact digital services weren’t mentioned in state laws was irrelevant, Pandora and Sirius still owned them money.

In something of a dramatic move, in 2014 the courts in California sided with Flo & Eddie on this point. And then, for a time, so did the courts in New York.

This sparked a flurry of legal wrangling and out-of-court negotiations, with both Pandora and Sirius reaching settlements over golden oldie royalties with the majors. Sirius also reached a deal with Flo & Eddie, though subject to various outstanding court cases on the issue, especially in New York and Florida.

It’s the latter that reached a resolution yesterday, with the state’s Supreme Court concurring with an earlier ruling that said there is no performing right for sound recordings under Florida’s copyright laws.

Judge Charles Canady wrote in the Supreme Court’s ruling on this question: “Flo & Eddie essentially asks this court to recognise an unworkable common law right in pre-1972 sound recordings that is broader than any right ever previously recognised in any sound recording. Doing so would require this court to, among other things, ignore the lengthy and well-documented history of this topic – something we decline to do”.

The judgement went on: “Florida common law has never previously recognised an exclusive right of public performance for sound recordings. To recognise such a right for the first time today would be an inherently legislative task. Such a decision would have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit”.

As previously reported, late last year appeal judges in New York overturned an earlier ruling suggesting there was a performing right under that state’s copyright law.

That decision was made mainly on the basis that it would be silly to suggest there had been a performing right lingering in the state’s copyright regime all these years that no artist or label had ever thought to enforce. Because if there was a general performing right for sound recordings at a state level, AM/FM stations should have been paying royalties on pre-1972 tracks too.

With Florida’s ultimate ruling now in, all eyes are now back on California, the state where it was originally declared the sound recording copyright did come with some performing rights. The issue has been bounced up to Supreme Court there too via litigation involving Pandora.

If the top court now decides there isn’t a performing right in California after all, that will throw up all sorts of questions about the settlements previously reached on this issue. Meanwhile, if the Californian Supreme Court does endorse the lower court ruling, that will mean performing right royalties are due on sound recordings in one American state but not others, which is rather unsatisfactory, and possibly even unconstitutional.

Of course, concurrent to all this are ongoing lobbying efforts by the music industry in Washington to [a] apply federal copyright rules like the digital performing right to all copyright-protected recordings, not just those released since 1972, and [b] to get a general performing right added to federal copyright law, so that AM/FM radio would have to start paying royalties to artist and labels on all the tracks they play.

So, plenty still to come on all this. Though, for the time being, a legal rep for Sirius has unsurprisingly welcomed this week’s ruling in Florida. Says lawyer David Gersten: “Justice Canady did a superb job of addressing everything. As I suspected, the district court judge, Judge Gayles, got it right. I think it really settles the issue in the state of Florida. It gets in line certainly with New York. It’s just a good, common-sense opinion”.



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