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Judge indicates that public performance right might apply to pre-1972 recordings in New York State too

By | Published on Tuesday 18 November 2014

Flo & Eddie

So the whole pre-1972 thing is getting very interesting indeed in the US, and arguably rather bizarre, in that recent rulings suggest that any terrestrial radio station, club or bar in the states of California or New York that has ever played recordings from before 1972 has been busy infringing copyright for decades, yet no one ever said anything until now.

Recap. US-wide federal copyright law only applies to recordings released after 1972. Federal copyright law says that satellite and online radio services are obliged to pay a royalty to the record labels when they play sound recordings (usually via SoundExchange), but the same obligation does not apply to terrestrial radio or the owners of public spaces where recorded music is played (though all parties are obliged to pay royalties to the music publishers for the copyright in the actual songs).

In recent years satellite broadcaster Sirius and online music service Pandora have argued that they are not obliged to pay royalties for recordings they play that pre-date 1972 because [a] federal law does not apply to those recordings and [b] the state laws that do apply don’t distinguish between terrestrial and satellite/online radio, and because AM/FM stations don’t pay royalties to the record labels, they shouldn’t have to either. Which isn’t an entirely unreasonable argument.

But the record industry isn’t convinced and has argued that Sirius and Pandora’s royalty obligation should apply to pre-1972 recordings that are, otherwise, still in copyright. Which, of course, includes the much played 1950s and 1960s rock n roll oeuvre. To back up this argument you either need to demonstrate that, on this point, federal law should apply to all copyright works, or that the state laws that directly protect pre-1972 recordings provide copyright owners with a so called public performance right (state laws usually a bit vague on this issue).

The major labels, SoundExchange and, most prolifically, Flo & Eddie formerly of 60s band The Turtles, have all forwarded the latter argument in their respective litigation. And in California Flo & Eddie won the argument in court, while the judge overseeing the labels’ lawsuit has indicated she will instruct any jury that a public performance right should apply to sound recordings protected by the state’s copyright laws.

And now, according to The Hollywood Reporter, a separate case being pursued by Flo & Eddie in New York seems to be moving in their favour as well. In that case, on Friday judge Colleen McMahon denied an application for summary judgement in its favour by Sirius, which argued that there was clearly no public performance right for sound recording owners under the state’s copyright system.

But case law offers no previous discussion on the topic, McMahon said, and while it might be odd that, if a general public performance right does exist for sound recordings, no artist or label has ever previously exercised it in New York state, that doesn’t mean said right doesn’t exist. In McMahon’s words: “Acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law – only that they failed to act on it”.

Not only that, but McMahon went on to muse that the fact no court had ever specifically denied the existence of the public performance right “implies exactly the opposite of what Sirius contends – not that common law copyright in sound recordings carries no right of public performance, but rather that common law copyright in sound recordings comes with the entire bundle of rights that holders of copyright in other works enjoy”.

So things aren’t looking good for Sirius and Pandora on this one. Though – as noted before – the precedents being set here go much further than the those two operators. Because if a general public performance right does exist for pre-1972 recordings in some US states, then that should apply to all users of pre-1972 recorded music.

Whether the labels would pursue that right remains to be seen, particularly if broadcasters threatened to just pull pre-1972 music off their airwaves. Though as public performance income becomes ever more important to labels (having been something of a side business in the CD boom days) the record companies might call the broadcasters’ bluff. After all, 60s tunes on the radio sell very little catalogue CDs or downloads, so arguably the broadcasters need the labels’ content more than the labels need the radio play.

And – pragmatically – if the labels go after Sirius and Pandora for these royalties, it would be unfair to let the AM/FM operators to carry on getting the freebies. So, interesting times ahead.