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In big setback for digital radio, court says SiriusXM must pay Turtles for pre-1972 recordings

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A federal judge in Los Angeles sided with sixties band The Turtles in a closely watched copyright case that has big economic implications for SiriusXM and other digital radio providers like Pandora.

In a summary judgment ruling published on Monday, U.S. District Judge Philip Gutierrez found that SiriusXM had violated California state laws by performing 15 recordings of The Turtles dating from before 1972 without a license.

The lawsuit began as a state class action suit in 2013, in which singers Flo & Eddie of the Turtles — known for hits like “Happy Together” — said SiriusXM owed $100 million in unpaid royalties.

Monday’s ruling is the worst-case outcome for [company]SiriusXM[/company] and other digital music services because it will likely expand the scope of music on which they must pay royalties, and could add a further layer of costs for the digital services that traditional AM/FM radio stations do not have to incur.

The actual dispute between The Turtles and SiriusXM, which is mirrored in a similar lawsuit involving [company]Pandora[/company], turns on whether state laws cover copyright in sound recordings. The issue is up for debate because the federal Copyright Act explicitly covers music recordings dating from 1972 — which in turn led the music industry to hold out a theory that a patchwork of state laws cover recordings prior to 1972.

Indeed, the music industry has even been lobbying Congress to stretch copyright further by passing a so-called “Oldies Law” that would require digital radio services to pay for pre-1972 recordings under federal law.

The Los Angeles ruling thus gives the music industry and its pre-1972 legal theory a boost. For SiriusXM and for consumers of digital radio, however, the ruling could lead to higher prices — or less music if the radio stations decide to simply play fewer songs from the 1940s, 50s and 60s.

While the music industry has framed the disputes with SiriusXM and Pandora as a sentimental call to compensate beloved musicians, the issue is actually more complicated than that. Under copyright’s convoluted licensing system, all radio stations pay songwriters when they perform their songs — meaning that songwriters and their heirs are already being paid for Turtles songs, and for songs dating back all the way to the 1940s.

The royalty regime for performers (as opposed to songwriters ) is different. It requires digital radio services but not AM/FM stations to pay performers, in addition to song-writers, for post-1972 recordings; as a result of the court ruling, the likes of SiriusXM may now have to pay pre-1972 performances as well.

SiriusXM did not immediately reply to an email request for comment, so it it is not immediately clear if the company will appeal the decision, or if it will cease playing the older recordings.

Here is a copy of the ruling, which does not specify what the damages will be, but does find SiriusXM liable for conversion, misappropriation and breach of California’s unfair competition law.

This story was updated at 4:45pm ET to clarify the nature of songwriter versus performance royalties.

Sirius 1972 Ruling

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6 Responses to “In big setback for digital radio, court says SiriusXM must pay Turtles for pre-1972 recordings”

  1. “In big setback for digital radio, court says SiriusXM must pay Turtles for pre-1972 recordings”

    In what has been celebrated as a victory in most circles, Gigoam and Jeff John Roberts, once again take the side of technology and the Internet over individuals who work as artists and create the very content that draw people to the Internet and provide the “product” the Internet uses to make money.

    This isn’t the first time Roberts has expressed his disbelief in this publication that the “Respect” bill and legacy songwriters, who wrote some of the greatest “timeless” songs, should not be compensated for their work.

    And why? So some tech company can get a free ride to profitability at the expense of someone else. And isn’t that what online piracy is all about, anyway?

  2. So – as a writer then – your assertion is that the two paragraphs toward the end beginning with the phrase “While the music industry has framed the disputes…” somehow make sense and explain something. They don’t seem to absolutely oppose each other from one thought to the next?
    And there is some kind of editorial process involved as well?
    OK then. If you insist. I’ll just call an ambulance and get myself checked in somewhere because I’ll be damned if I understand what it is that says.

  3. John Willkie

    This article is NOT ONLY UNCLEAR, it’s simply lifeless. Were one to look just a bit into the case and factual situation — as opposed to misreading a court pleading with an uninformed and chauvinist eye — one would discover that the value here is one song: the Turtles’ “Happy Together.” Imagine what a real writer and a real editor could do with that hook? “Unhappy together.”

    One would also find out with just a few minutes of actual research that “Flo & Eddie” is a shortened form of the term “Fluorescent Leech and Eddie” which (at least to my memory) is the appellation they first used when appearing as the “front men” for Frank Zappa and the Mothers of Invention in a three-album run. A three album run that — ahem — was before 1973.

    Fluorescent LEECH. Imagine what a real writer and a real editor could have done with that more-than-40-year-old term. One could also find out that Howard Vollman and Mark Kaylan, who, if memory serves me, started performing together at one or the others’ bar mitzvah.

    Now, I’ve never met the guys, never done business with them, and I think that their work on the live “Was Mothers just another band from L.A.” album is their high-water mark. I liked “Happy Together” at the time, but recognized it was an empty-headed ditty. A former boss of mine did have a photo of the two on his office wall, but he never explained his connection to the duo to me.

    You could have even mentioned that Flo & Eddie are the songwriters in question and the performers in question, so the Leech and friend want it both ways. You could have also mentioned that some of the performances are on Zappa albums that are also played on Sirius XM.

    It wouldn’t be defamatory to have changed the headline to “‘Unhappy’ Fluorescent Leech still not ‘together’ with XM.”

    Witless never wins out over witty. Witless seldom wins out over failed attempts at witty.