The Fuss Over Pre-1972 Recordings: Is there a common-law performance right?

The cover of The Turtles’ 1967 single, “Happy Together.”

Today, federal copyright law protects sound recordings and the right to receive royalties for public performance. However, pre-1972 recordings do not enjoy the same type of protection. As a result, for years these songs were being played on the radio and streamed without the thought of potential infringement since the going belief was that no authorization was necessary.

In 2013, there was a rude awakening when Flo & Eddie Inc., which owns all rights to the recordings of the 1960s rock band The Turtles (best known for their 1967 hit “Happy Together”), filed simultaneous law suits in New York, California and Florida federal court on behalf of itself and a class of owners of pre-1972 sound recordings against Sirius XM Radio, claiming common-law copyright infringement.

Is there a common-law copyright in the public performance of sound recordings? If there is, it could be a royalties boon for artists with pre-1972 recordings who were for so long not able to collect. The stage was set.

Florida was up first. The district court ruled for Sirius on summary judgment and found, among other things, that Florida did not recognize an exclusive right of public performance in sound recordings. This ruling was appealed to the Eleventh Circuit, who then, in a June 2016 opinion, certified the question to the Florida Supreme Court. The Florida Supreme Court has yet to rule.

California was up next. In September 2016, the district court granted summary judgment in favor of Flo & Eddie on the issue of the public performance right and found that California law granted an exclusive public performance right over pre-1972 sound recordings to their owners. Instead of continuing to duke it out at trial, the parties decided to settle the California matter in November 2016.

Then, like a cold salvo on Flo & Eddie’s parade of victory, the New York Court of Appeals, responding to a certified question from the Second Circuit Court of Appeals, ruled in a December 2016 opinion that there was no public performance right under New York law.

So, whether there is a common-law or state-law public performance right will all depend on the state you are in. As such, the journey continues for Flo & Eddie to see how much royalties they can recover for themselves and other similarly situated artists. In any event, they are off to a good start.

Eldonie S. Mason Esq. is the founding member/attorney and arbitrator at Mason Firm, LLC, in East Brunswick. Visit masonfirmllc.com.

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