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Copyright land grab by The Turtles threatens digital music, will not help young musicians

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It sure seemed like a feel-good moment when sixties singers Flo and Eddie, known for performing hits like The Turtles’ “It Ain’t Me Babe,” beat SiriusXM in a court fight over royalties last month. But as the implications of the duo’s victory becomes clear, the feeling is more like a hangover.

According to copyright experts, the court ruling will spawn a glut of further lawsuits, and could expose music providers of all types — from [company]Pandora[/company] to websites like [company]YouTube[/company] — to brand new copyright fees that will ultimately be paid by consumers.

A closer look at the case shows how it is less about justice for aging singers, and instead a way for the music industry to get new money for old rope.

Free money for Flo & Eddie

When Flo and Eddie of The Turtles won their royalties case against SiriusXM in September, the moment came as a victory for a sentimental campaign that the music industry has been stoking for years. That campaign, which the industry has been fighting in the courts and in Congress, is about “unpaid royalties” that are allegedly being pocketed by SiriusXM and Pandora at the expense of beloved older musicians.

Even to copyright lawyers, the focus of the fight is arcane, but it can be explained like this: a 1995 law requires digital radio services to pay for performing sound recordings — but only those created after 1972. Earlier recordings are not protected by federal law.

For practical purposes, this means that when Pandora plays The Turtles’ 1965 version of “It Ain’t Me Babe,” the company doesn’t have to pay Flo and Eddie (though it does have to pay Bob Dylan who wrote the song).

Now, however, the music industry is trying to squeeze out more royalties by turning to state copyright laws that have been dormant for nearly a half-century, and that never applied to radio performances in the first place (you can read an excellent breakdown of how it all works here).

The Turtles duo, meanwhile, are just one face of this fight. The industry has also been spitting out heart-tugging appeals from Aretha Franklin and Buddy Holly’s widow to drum up support in Congress for a law to collect more money from the old recordings.

All this sentimentality, however, masks the fact that the dispute is less about “unpaid” royalties, than it is a gimmick to conjure money from thin air.

Recall that Flo and Eddie and the rest of them have never been paid for radio performances of pre-1972 works, so why it’s unclear why it’s time to start paying them now. And lest this sound hard-hearted, don’t forget that copyright law offers multiple strands of royalties — including one that pays performers whenever a consumer buys one of their recordings.

Meanwhile, SiriusXM and Pandora — the villains in this story — are already paying buckets of money for songwriter and performance royalties at rates that, due to legal distinctions between digital and non-digital radio, far outstrip those paid by AM/FM radio stations.

All this complexity, however, is a boon to the record labels. It allows the industry’s PR machine to elide the baffling copyright details, and talk instead about all those feel-good hits.

And now, after Flo and Eddie’s recent victory against Sirius XM, the music industry is poised to beat a path to courtrooms across the land, and to push Congress to make this temporary windfall a permanent one.

A threat to radio stations and websites too

“The opinion is eye-popping, and creates a tremendous amount of uncertainty,” said Naomi Gray, an intellectual property lawyer with Harvey Siskind in San Francisco.

It mean that companies could be on the hook for a new type of state-based copyright royalty every time they play a song that dates from prior to 1972. Worse, the rules vary from state to state. Depending on what courts decide, a radio station may have to pay in California but not in New York.

The quagmire gets deeper still because no one is sure if the DMCA (an important federal shield law that can give websites immunity for copyright infringement by their users) applies to state-based copyright action. Based on the logic of the SiriusXM ruling, record labels could now be in position to go after sites like YouTube or Facebook whenever people upload an oldie.

In this confusing legal environment, lawyers may begin advising media companies of all stripes to refrain from playing music from the 1950’s, 1960’s and early 1970’s.

A spokeswoman for the Recording Industry Association of America said in an email that the organization would decline to speculate on how broadly the recent ruling might apply. But it’s worth noting that the music industry is already striking while the copyright iron is hot: last week, Flo and Eddie filed a new class action suit against Pandora, one modeled on their SiriusXM claims.

Gray stressed that last week’s SiriusXM ruling is under appeal and that the decision is based on California state laws (the sound recording law is different in other states). This means that Flo and Eddie’s copyright windfall is not a done deal but, as Gray also noted, there is likely to be a “gold rush” for lawyers in the meantime.

How to direct copyright money to who really needs it

Even as the legal mess over state copyrights gets sorted out in the courts, tension is brewing as to whether Congress should get involved and, more broadly, over which musicians should get more money.

According to Casey Rae, a VP with the nonprofit Future of Music Coalition, the smoothest way to resolve the controversy over state law copyright claims is for Congress to federalize all sound recordings. In practice, this would mean that sound recordings before and after 1972 could be treated alike.

Rae added that, in an ideal world, there would also be more parity between the royalty obligations of AM/FM radio stations — whose lobbying clout means they don’t have to pay for sound recordings at all — and digital services like SiriusXM and Pandora, which must pay both songwriters and sound recordings when they perform a song.

It’s an appealing idea. After all, why should the rules for terrestrial and digital radio be so different? (And indeed, radio giant Clear Channel has already agreed to start paying sound recording fees for AM/FM in return for a better deal on digital rates).

But this equilibrium argument doesn’t explain why SiriusXM or anyone else should start paying for pre-1972 sound recordings. For a court or Congress to make such an order would amount to a brand new copyright royalty that didn’t exist before, and would do nothing to spur creativity — which is the point of copyright law in the first place.

The notion that Flo and Eddie are entitled to a new type of copyright windfall is also obnoxious for younger musicians, who will see little of that windfall even as they struggle to launch their own careers. Like pensions and cheap tuition, a pre-1972 copyright award would be a benefit that will largely accrue to baby boomers but not to millennials.

If Congress and the courts really want to impose more copyright costs, they should at least do so in a way that directs the money to up-and-coming musicians — not half-century old acts that have collected multiple times already. In the meantime, as this is sorted out, there will be only one sure winner.

“There are lots of lawyers, and these cases are billable hours — they’re certainly not shy about litigation,” Rae said. “I would love it if saner minds prevailed.”

21 Responses to “Copyright land grab by The Turtles threatens digital music, will not help young musicians”

  1. HHHolmes

    Sorry, but you got this one wrong. Just because an injustice has been perpetrated for decades, doesn’t mean that it’s correction is inappropriate. The U.S. is one of just a handful of nations–the others being progressive charmers like North Korea–which does not compensate performers as well as authors. And this has had massive negative consequences for American artists. There are tens, if not hundreds of millions of dollars that are collected for American recording artists in Europe that will not be paid until we pass laws matching European laws that provide royalties for performers. The recording industry lobby has used its influence to persuade US legislators to block these laws for many years, to their own financial benefit, and at the expense of artists who earned those royalties.
    That is the recording industry’s inconvenient truth.

    • Future of Music

      This is close, but not quite right; it’s the broadcasting lobby, led by the National Association of Broadcasters that has prevented performers from getting paid on AM/FM radio. The recording industry is in favor of paying performers for AM/FM airplay.

    • Will Buckley

      Wake up John. For artists it’s about survival, whether they be musicians, songwriters, authors, filmmakers, all creatives.

      A tiny percentage are fabulously successful, for everyone else it is about living a very modest life in pursuit of a passion.

  2. Casey Hades Rae

    Casey from Future of Music Coalition here. To be clear: my organization supports paying all artists for the use of their work, including performers who recorded music before February 15, 1972.

    The point here is *how* that is accomplished, through expensive litigation and appeals, with uncertainty from state to state and platform to platform, or uniform policy that sets the obligations for compensation regardless of the year the recording was made (as long as it is still under copyright) or the flavor of service.

    The digital public performance right for sound recordings pays performing artists directly and under fair splits. This is the appropriate structure for royalty collection and distribution (even if there are still conversations to be had about rate-setting determinations).

    “Saner minds” should recognize the value of market certainty and seek to reduce liability. At this point, the solution is in federal policy, not the courts.

  3. Future of Music

    We appreciate being quoted, but to be entirely clear, we fundamentally disagree with many of Mr Roberts’ conclusions about pre-1972s. Performers deserve to get paid when their music is used, regardless of whether they’re young or old. It’s an issue of basic fairness.

  4. Will Buckley

    “Oldies groups like The Turtles are getting a lot of attention by suing digital music services. The cases amount to yet another unjustified expansion of copyright law.”

    John, you’re really going to have to do more research, if you are going to write about
    copyright. I means it’s kind of embarrassing. This isn’t about creating a new law or expanding on an existing one. The ruling is simply upholding a law that has been on the books longer than you have been alive.

    Then you throw this in, which has no bearing on the case and has a reference to the Grooveshark piracy case, with an inane article in Forbes that tries to make the case that Grooveshark is innocent, when they were caught making the most basic mistake in successfully operating a pirate site. There’s written proof via internal communication.

    The tragedy? that this charade has been allowed to go on so long in the courts. Grooveshark is dead in the water. Now, it is just a matter of time.

    “The quagmire gets deeper still because no one is sure if the DMCA (an important federal shield law that can give websites immunity for copyright infringement by their users) applies to state-based copyright action. >>>>> Based on the logic of the SiriusXM ruling, record labels could now be in position to go after sites like YouTube or Facebook whenever people upload an oldie<<<<<<"

    YouTube in violation of copyright because they upload an oldie? John, the problems with YouTube go way deeper than that.

  5. shuteye

    “they should at least do so in a way that directs the money to up-and-coming musicians — not half-century old acts that have collected multiple times already.” Sorry – everyone young and old should be paid for their work. Agreed that standards should be put in place at a federal level for pre-1972 but don’t discriminate against someone in their 60’s and 70’s versus someone in their 20’s. I love paying 10 bucks for Spotify premium but if that has to go to $12.00 or $15.00 so everyone gets paid, especially those who created the work to begin with then so be it.

  6. The irony of this story is that Flo And Eddie and The Turtles have a well publicised history of being robbed and screwed by labels and managers. Having got their copyrights back, they are doing the suing, not the label.

  7. Charlie

    Am/fm and internet should be on same footing. If not for pandora and xm, a new generation wouldn’t even know this music. Anyone who complains about radio play should just be banned from the airwaves, being starved of the media attention that was the pathway to royalties in the first place. Goodbye “old” music.

    • Anonymous

      This is my idea about Google too. Want an article removed? We’ll just removed your entire website. Enjoy the loss of profits and traffic.

      Complaining about free advertisement of your music on the radio? We’ll just not play your tracks. Enjoy the loss of advertisement.

  8. This is the most muddled argument I have ever read…….in fact its not even an argument.
    What is the reason that pre 1972 recordings dont attract royalties……it certainly isnt in the article.
    Apparently for recordings from 1973 its fine…….1971 no?

    • C Scott Willy

      Reread the article. It is federal law.

      “a 1995 law requires digital radio services to pay for performing sound recordings — but only those created after 1972. Earlier recordings are not protected by federal law.”

      • But that doesn’t explain the logic in the law. In an article that discusses changes to that law it would be helpful to include the original motivation for the 1972 cutoff.

  9. Why isn’t the creator of pre ’72 music entitled to a royalty from some short term company looking to make a buck from it? Why should someone be able to come along and make money off the creation without doing anything but distributing it? Creators should have a lifetime of ownership rights. And if they pass them along to a spouse or other beneficiary they should enjoy the same benefit. Time should not change the rights of ownership so easily. Young musicians will enjoy the benefit from there work today in their retirement only when the laws are fairer to the creator and ownship stays where it belongs, in the hands of those who worked hard to create it.

    • nycstone

      Legal music decisions should take the lead from book copyright law. There’s fair use, there’s expiration, etc. Also, does your comment infer that present day relatives of Beethoven or Shubert should sue? How far back should musical payment go? Also, I doubt that more than a low single digit percentile population under 45 knows who THE TURTLES were. It would have been better to force stations which play older music to contain a mandatory (advertising) announcement (maybe just 15 seconds) for a single album (greatest hits for example) or a website purchase location. Paying for 50+ year old music is nuts. BTW, my understanding (which is fallible) is that THE TURTLES didn’t write the song(s) in question. So this means that anyone playing a cover tune should be compensated as well as the song writer?

  10. I like the idea of directing the money to indies and up-and-coming artist like myself, we could really use the dough for supporting our careers or paying our mortgages, not half-century acts that have already collected royalties already.

  11. This post mixes up several different arguments. Does it make sense to resort to state copyright laws to get paid for pre-1972 recordings played by digital services? No. But does it make sense to pay living artists royalties for recordings made in ’72 but not those made in ’68 or even ’71? Even by the same artists? And how are Flo & Eddie hurting young musicians but those being paid (the Eagles, anyone?) for post-’72 recordings not hurting those same young musicians? Living musicians should get a royalty payment for broadcasts — whether digital or analog — regardless of when the recording was made.