By Wallace Collins on Entertainment Industry Law Issues
It started with the Turtles suing SiriusXM, but now all of the leading providers of streaming music are involved in lawsuits concerning pre-1972 sound recordings. New lawsuits have been filed against Apple's Beat Electronics, Sony Entertainment, Google, Rdio, Songza, Slacker and Escape Media Group/Grooveshark.
These new proposed class action lawsuits on behalf of various rights-holders of pre-1972 sound recordings seek the disgorgement of profits, punitive damages and a restraining order that would prevent these companies offering digital radio services from further exploiting pre-'72 sound recordings without a license. In bringing the claims of misappropriation and conversion, these lawsuits are following in the footsteps of The Turtles and the RIAA, which upset long-standing assumptions about the distribution and performance of older music in lawsuits filed against SiriusXM and Pandora.
This legal opening happened because when Congress amended the copyright laws in the 1970s to cover sound recordings and protected only those authored after February 15, 1972, under Federal copyright law. Since then, a wide variety of music users from TV broadcasters and terrestrial radio to local bars and restaurants throughout the nation have performed pre-'72 sound recordings without much legal trouble. As for digital radio, most operators assumed they were covered by compulsory fees established by the Digital Performance Right in Sound Recordings Act of 1995 and collected through SoundExchange. However, in August, 2013, The Turtles commenced their $100 million class action against SiriusXM alleging that its sound recordings were protected by state laws, and last September the Turtles prevailed on their summary judgment motion. The RIAA has also succeeded in its battle against SiriusXM - which opened the door for more lawsuits against others.
The latest lawsuits show that this issue isn't going away anytime soon and has the potential of wiping out older music from the Internet without new royalty agreements or intervention by Congress or maybe the U.S. Supreme Court. In response to earlier lawsuits, SiriusXM had attempted a variety of defenses, first challenging whether California and New York laws really cover pre-'72 music or are preempted before trying out arguments ranging from having an implied license to the lawsuits being an impermissible trampling of the commerce clause under the U.S. Constitution. Thus far, the defenses have been rejected by Judges even upon pleas of reconsideration. The pending litigation, though, has spurred furious new lobbying attempts to get Congress to address pre-'72 music.
In the meantime, none of the latest lawsuits filed have been certified by Judges for class action status nor entered the damages phase. That will likely be the next step, as efforts are also being made to take the issues up on appeal.
WALLACE COLLINS is a New York lawyer with over 30 years experience specializing in entertainment and intellectual property law. He was a recording artist for Epic Records before attending Fordham Law School. (212) 661-3656; www.wallacecollins.com