SiriusXM Loses For A Third Time On Public Performance Of Pre-1972 Works, This Time In New York
from the a-big-shakeup dept
A year ago, a bunch of folks in the recording industry hit on its latest strategy to squeeze more money out of services playing music: upset decades of settled copyright law, and pretend that pre-1972 works were subject to public performance rights. Suddenly lawsuits started flying like crazy, most directed at Sirius XM, with a few directed at Pandora. The key issue is the fact that pre-1972 sound recordings are not covered by federal copyright law, but a patchwork of (very messy) state laws and common law. Those state laws were never considered to have included public performance rights, but now people are going back to pretend they did. Of course, there would be a simple way to deal with this: just make those recordings subject to federal copyright laws, but the RIAA has fought hard against this.In September, a judge ruled against Sirius XM and in favor of Flo & Eddie, the company that owns the rights to the music of the band The Turtles. In October, another California court agreed with the first (despite initially leaning in the other direction). Both of those were specific to California state law, however. But now, another month has gone by and Flo & Eddie has another big victory over Sirius XM, this time under New York's law. You can read the ruling.
The judge, Colleen McMahon, acknowledges that this ruling completely upsets decades of accepted practice, but doesn't seem too bothered by it all:
Of course, the conspicuous lack of any jurisprudential history confirms that not paying royalties for public performances of sound recordings was an accepted fact of life in the broadcasting industry for the last century. So does certain testimony cited by Sirius from record industry executives, artists and others, who argued vociferously before Congress that it was unfair for them to operate in an environment in which they were paid nothing when their sound recordings were publicly performed.... That they were paid no royalties was a matter of statutory exemption under federal law; that they demanded no royalties under the common law when their product as ineligible for federal copyright protection is, in many ways, inexplicable.Instead, she notes that the reason this is only coming up now is because Congress only created a performance right for digital music recently. That doesn't really make much sense when you think about it. If the industry was really sitting on this potential goldmine of performance royalties for decades, wouldn't it have made use of it before now?
But acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law - only that they failed to act on it.
Instead, the judge defaults to a purely maximalist approach, saying that absent any specific exemptions, we should assume that common law copyright in New York covers just about every damn thing.
Modern federal law supports the notion that an express carve-out is required in order to circumscribe the bundle of rights appurtenant to copyrightThat should raise some serious First Amendment questions. In federal copyright law, the Supreme Court has argued that the First Amendment conflict is generally resolved through exceptions to copyright -- including those established in common law, like fair use. Yet here, the court is basically saying, unless an exemption is clearly stated, everything is covered. That's very troubling.
Of course, it's likely that this, like the California cases, will be appealed, and it will all eventually end up before the Supreme Court. But, in the interim, don't be surprised if "golden oldies," including pretty much all music from pre-1972, start disappearing from a variety of services. Good job, recording industry, you may succeed in driving the classics into total obscurity.
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Filed Under: copyright, new york, performance rights, pre-1972, pre-1972 sound recordings, the turtles
Companies: flo & eddie, pandora, sirius xm
Reader Comments
The First Word
“Modern federal copyright law carves out explicit exceptions to free speech in the Copyright Act of 1976. This statement shows a fundamental misunderstanding of the nature of copyright law by the judge, as well as the nature of intellectual property generally.
Then again, I've litigated enough to not be surprised.
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Can't blame the services for it. And again you can rely on file sharing to preserve such things much like it's been done with a variety of titles. It is sad that pirates came too late to save some titles that rotted in the MAFIAA's warehouses though.
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After all, those songs are 42 years old now, so clearly that's the answer.
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All on-demand services (Spotify, Rdio, Rhapsody, Beats) pay for pre-1972 recordings as well.
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So the cartels will manage to get a small pile of cash that they might throw a few cents of to the artists...and will have made sure that no platform will touch ANY of this content in the future.
There will be no discovery of this content by new fans, so no future sales potential, and they will use the lack of interest as a reason to withdraw these things from the market.
Isn't copyright wonderful?
For a limited time really should be less than the half life of plutonium.
The laws of the past are so far removed from the present day they are damaging.
It is well past time that the laws be revisted and revised and actually make sure that he public is given something once again in exchange for these "limited" monopolies.
The patchwork of laws here and abroad no long serve any purpose but to line the pockets of the cartels at the expense of the artists and the public.
Things under copyright vanish, locked away and forgotten because no one knows who has the rights.
Copyright should require that it be available in the market at the market price lest it lose its status.
Millions are wasted in legal fights that manage to change what laws actually say to meet some new desire for income off of content they hold but can't be bothered to market themselves. Perhaps it would be best to put them back into the job of selling content and not rewriting laws to keep old concepts alive... they forgot their job was to promote, expose, and sell... no to lock up forever while they consider how to squeeze every tenth of a cent they can possibly get.
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But don't let facts get in the way of your anti-musician, pirate rant.
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[Citation Needed]
but don't let that get in the way of your baseless accusations.
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i never could understand why the law makes this sort of thing illegal unless money is paid out, even after 10years, let alone the lifetime plus another one or whatever. absolutely ridiculous!!
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It's oh so tempting to creatively adapt this without permission or consent to "bring back copyright terms to a sensible below human life duration and the waste of lawyers fees and legal racketeering on obsolete laws will go away".
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What we need to do is keep educating new and potential artists to stay away from the labels. Sure they may look alluring to start with, but once you sign the deal with the devil (and make no mistakes, they genuinely are the devil) you can pretty much kiss your profits goodbye. Things won't look so nice once you get your first royalties check...if you ever get your first royalties check. Because they'll be sure to do everything in their power, including breaking the law, to make sure you don't. Education here is key.
And the next time the dinosaurs in a suit try to proclaim they are doing anything for the sake of culture, throw this back in their face immediately.
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Response to: Anonymous Coward on Nov 17th, 2014 @ 5:18am
Then we end up with an orphan works scenario. If you want to play pre 1972 music, you gonna track down who has the rights to your favorite obscure musician, or buy a big package from MAFIAA?
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Re: Response to: Anonymous Coward on Nov 17th, 2014 @ 5:18am
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Re: Re: Response to: Anonymous Coward on Nov 17th, 2014 @ 5:18am
In fact, what with termination rights hanging just around the corner, this could be even more insidious.
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Flo and Eddie
Flo and Eddie are the actual Turtles. Mark Volman and Howard Kaylan were the Turtles dudes, but they adopted the names of Frank Zappa's roadies when they joined the Mothers of Invention after the Turtles sank.
I'll shut up now.
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Re: Flo and Eddie
Other than music copyrights, another issue with these 'oldies' bands --in fact, any band-- is that the trademarks are often not owned by the band members themselves. And not uncommonly, when the original band menbers get together and tour, they are prohibited from using their former name in any manner whatsoever, and are even barred from answering "yes" to that question on a radio interview.
The public tends to think of band members as being owners/partners, but that's usually not the case at all. Many are basically just hired hands with no ownership interest, and can be sacked at any time.
So whenever an oldies band comes to town, it's always a good idea to look them up to see if it's really the original band ... or just some session players hired by some guy who bought the band name as an investment.
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Re: Re: Flo and Eddie
The "other band members" was a revolving door of back up musicians. Mark Volman and Howard Kaylan were the mind, soul and voices of the band The Turtles.
But don't let facts get in the way of your anti-musician, pirate rant.
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Re: Flo and Eddie
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Modern federal copyright law carves out explicit exceptions to free speech in the Copyright Act of 1976. This statement shows a fundamental misunderstanding of the nature of copyright law by the judge, as well as the nature of intellectual property generally.
Then again, I've litigated enough to not be surprised.
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Year Payment
1-5 Free and automatic
6-10 $10 and must register
11-15 $100 and must register
16-20 $1,000 and must register
21-25 $10,000 and must register
25-30 $100,000 and must register
31-35 $1,000,000 and must register
etc.
This ensures that at some point, it's cheaper to not register and allow the work to go into the public domain.
Most works would not be registered at all and even most popular works only once or twice. Maybe some Disney movies would actually make it to the 30 year mark and maybe Michael Jackson or the Beatles, but most works wouldn't make it that far.
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Yes it does. That's a good thing.
"Even then there would still be an orphan works problem when death or bankruptcy left no obvious transfer of ownership."
That wouldn't be a problem at all -- if the records aren't up to date, then the copyright isn't valid and the work falls into the public domain. There would be no orphan works issue.
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That would be an improvement on copyright, which is getting paid for the rest of your life, and your inheritors getting paid for the next 70 years. That is your hard work should keep you and your children and grandchildren in luxury.
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That statement is simply untrue. Over 15 years of blog posts from Mike dispute that without a doubt.
You seem to be lashing out at the messenger because reality isn't quite conforming to your illusions of what the music business should be.
You can shake your fist at the clouds all you want, but it won't change the fact that your little exclusive club isn't so exclusive anymore because the bouncers (A&R men) can no longer stop everyone at the door and the pie is now being cut into smaller pieces.
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No, I'm *THRILLED* when artists get paid for their hard work, which is why I happily highlight successful artist business models all the time. What worries me is when the law is abused in a way that stifles creativity and innovation.
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That's probably their goal. How many artists from the 50's and 60's are still actively touring, have merchandising etc? People spending time finding and listening to their music are people not spending time and money on whatever hot new artist the RIAA is pushing and the associated concerts, merchandise, and so forth.
The past isn't valuable to them, it's the competition. And I think we all know how fond recording industry types are of competition.
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They don't WANT you to play old games. It's getting in the way of you buying their new games.
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Flo & Eddie taking over from the rip off artists
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This is insanely sloppy and irresponsible reporting. The order above is denying summary judgement, meaning the case is still in motion practice. It hasn't even come close to trial yet. This is not a final opinion, this is not jurisprudence, this is not what the article says it is.
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It's true that it's not a final judgement, but it is an order ruling that, as a matter of law, the Turtles do have a public performance right under New York state law.
In fact, the judge gave SiriusXM until December 5th to bring additional facts to the case (not legal arguments), and if not, she would issue a default judgement against them:
In other words, the only thing that would save SiriusXM from liability is if there were "disputed issues of material fact" - e.g. if SiriusXM could show that they did not, in fact, play the Turtles' music.
This is about as close to a final judgement as you can get without actually being one.
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