Carole King, Beatles and Grateful Dead companies submitted an amicus document in a case about pre-1972 sound recordings as Congress prepares to debate legislation on the issue.
A veritable supergroup’s worth of sixties musicians on Friday (Jan. 12) filed an amicus brief in a California lawsuit against Pandora for its use of sound recordings made before 1972, and thus not covered by federal law. Although the issue in the case -- originally brought by Flo & Eddie, Inc., which owns the Turtles recordings, and currently before the California Supreme Court -- is fairly obscure, the artists are anything but. The amici artists include Carole King, Melissa Etheridge and Doors drummer John Densmore; the estates of Hank Williams and Judy Garland; and companies like the Beatles’ Apple Corps., Grateful Dead Productions and Experience Hendrix.
At stake is whether, and how, non-interactive streaming services like Pandora need to compensate performers and labels for their use of older recordings that are still covered by state law. The music industry has also been lobbying for a legislative answer to the question, and the recently introduced CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act) would require digital services to pay for the use of recordings made before 1972. On Jan. 26, the Friday before the Grammy Awards, the House Judiciary Committee will hold a “field hearing” in New York on this and other copyright issues, according to multiple sources.
The legal issue of pre-1972 sound recordings is abstract, even by the standards of copyright law. Before 1972, sound recordings weren’t covered by federal law, although they were covered in some places by state law. (Other works, such as books and musical compositions, were covered by federal law much earlier.) In most cases, this isn’t an issue. But it means that the federal law that requires non-interactive digital services to pay for their public performances of those recordings doesn’t cover tracks done before 1972. They’re covered by state laws, and there’s a question of whether those laws include a right to be compensated for certain public performances of sound recordings.
Wait: It gets more complicated. For years, SiriusXM didn’t pay for its use of recordings made before 1972 -- which accounted for a significant fraction of its programming. Howard Kaylan and Mark Volman, aka Flo & Eddie of the Turtles, who own their own recordings, sued SiriusXM in California in 2013 and Pandora the following year, on the grounds that the state’s laws required the services to pay them. The major labels also sued SiriusXM, which settled these lawsuits. Eventually, other suits were filed in other states, resulting in several rulings that their laws don’t require payment. All of this litigation is complicated by the fact that if state laws do establish the right to be compensated for some uses of a sound recording, they don’t establish a rate the way federal laws do.
The legal issue in the Turtles lawsuit against Pandora ended up before the California Supreme Court after Pandora asked a federal court to dismiss the band’s original state claim and the 9th Circuit Court of Appeals referred the issue there. The outcome of the case could influence others in California, as well as the prospect of legislation, and the RIAA has weighed in with its own amicus brief and helped organize the one from the artists.
While that brief addresses the legal issues, the artist’s brief -- filed by Jeffrey Knowles and Julia D. Greer of Coblentz Patch Duffy & Bass LLP -- makes a more accessible argument about the importance of music to California and of payments to performers. “It’s basically simple,” Jefferson Airplane singer Grace Slick told veteran music writer Steve Hochman, who interviewed artists for the brief. “If you are making bucks off of my stuff, guess what? I deserve a portion of it."
The history of California state copyright law is more complicated than that, but such arguments could also be aimed at an audience of lawmakers who could address the issue in Congress with the CLASSICS Act. The New York House Judiciary Committee field hearing will make the beginning of a more aggressive push for mark up of the various music licensing acts that have been introduced over the past several months. House Judiciary Committee Chairman Bob Goodlatte (R-Va.) has said he wants to enact meaningful copyright reform legislation, but he has also said he will not run for reelection -- which means, in practice, that laws would need to be passed before Congress breaks for the summer.
The music industry is united in supporting the CLASSICS Act, as well as several other licensing bills. Although Pandora supports the CLASSICS Act, partly because it would bring clarity to the issue, SiriusXM is said to oppose it.
“There is an historic injustice being done to legacy artists from California and the entire country,” says Steven M. Marks, the RIAA’s general counsel and chief of digital business. “What this shows is artists and the entire music community are mobilizing, speaking out, telling the story of music’s value and vigorously working to right this wrong wherever we can.”