The 1960s band, the Turtles, won another victory in their battle to retrieve royalties for songs they recorded prior to February, 1972. This one could have broad financial implications for other artists, as well as digital and streaming firms.
Yesterday, Central District of California Judge, Philip S. Gutierrez, granted Flo & Eddie, Inc. (the corporation formed by two of the original Turtles members that owns the group's recording rights) class certification in their lawsuit against SiriusXM Radio.
Vocalists Howard Kaylan and Mark Volman (later known as Flo and Eddie) led the LA-formed band. Famous for several Top 40 hits including their 1965 cover of Bob Dylan's It Ain't Me Babe, the Turtles scored their biggest (and only number one) smash in 1967 with Happy Together. The song entered the Grammy Hall of Fame in 2007.
According to court documents, Flo & Eddie. Inc. licensed rights to their recordings for use in movies, TV shows, and commercials, but not to any radio stations; satellite, digital or otherwise. SiriusXM operates subscription-based satellite and Internet radio services. The largest radio broadcaster in the United States as measured by revenue, it has over 25.8 million paying subscribers.
SiriusXM offers pre-1972 recordings to its subscribers, including, until recently, those owned by Flo & Eddie. According to the lawsuit, “SiriusXM performs pre-1972 recordings without obtaining licenses from or paying royalties to owners of the recordings.” The firm's policy is based on current federal, but not on certain state, copyright laws.
On August 1, 2013, Flo & Eddie. Inc. first filed a class action complaint in Los Angeles Superior Court. The class was defined as: “owners of sound recordings fixed prior to February 15, 1972 which have been reproduced, performed, distributed, or otherwise exploited by Defendant SiriusXM in California without a license or authorization to do so during the period from August 21, 2009 to the present.”
The Court has already granted a summary judgment of liability in favor of Flo & Eddie, Inc. On March 3, 2014, the parties disagreed as to how the case should proceed. Flo & Eddie. Inc. wanted class certification to precede the filing of all motions for summary judgment. Whereas, SiriusXM wanted an early summary judgment motion on liability prior to the class certification. Doing so would mitigate the possibility of more musicians joining the class.
SiriusXM claims that during the course of litigation, it has made strides in working with certain artists, noting that the firm had “entered into many written licenses” with pre-1972 recording owners. Based on April 2015 court documents, SiriusXM has entered into approximately eight [direct] licenses.
On March 16, 2015, Flo & Eddie. Inc. filed their class certification motion.
SiriusXM argued that class certification wasn’t needed in this case, due to the disparity of the size of potential claims. The Court saw it differently. Judge Gutierrez argued that a class distinction was needed, precisely because of smaller claimants, stating that, “given SiriusXM’s aggressive litigation tactics thus far, its public statements about intent to appeal adverse decisions, and its decision to continue to perform pre-1972 recordings without authorization, it may be cost-prohibitive for owners with smaller value claims to pursue their claims against SiriusXM in this environment.”
Demolishing SiriusXM’s other argument - that similar suits had already been brought by big labels - the Court said, “That three powerful record labels have the resources to launch their own lawsuit against SiriusXM does not indicate that the individual lawsuit alternative is also a workable or preferable method for small owners.”
In another major coup for smaller artists especially, the Court concluded that “it would be inefficient for recording owners, SiriusXM, and the courts to litigate these similar factual and legal circumstances a thousand times separately.”
Flo & Eddie, Inc. also filed a class-action suit against
Legally, theses suits hinge on the demarcation between federal and state copyright laws. Under Section 114 of the federal Copyright Act, there is a statute of limitations on exclusive rights to recordings made on or after February 15, 1972. SiriusXM and others are operating legally under that law. Certain state laws, on the other hand, cover pre-1972 recordings. The Turtles have filed class-action suits against SiriusXM in California, Florida and New York, requesting more than $100 million in damages.
Granting this suit class action status leaves the door wide open for other artists with pre-1972 recordings to enter the class. The result could be substantial settlements, or many years of litigation, or both.
How much the Turtles recoup for themselves, or for other artists that may join the class, is not clear. But one thing is certain, there is a pressing need to revise federal copyright law to be at least as artist-friendly as state laws, especially given the increasing prevalence of digital and streaming platforms. SiriusXM and Pandora aren’t the only firms, or stations, adhering to federal laws that have fewer artist protections than certain state ones. Indeed, all royalty splits caught up in pre-digital and pre-streaming laws require revised protections for the artists involved.
The Turtles will be on their Happy Together Tour this summer.
