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Pandora Gets Creative Again: Company Cites Its First Amendment Rights in Turtles Lawsuit

Pandora is getting creative again in its quest to save some -- or a whole lot of -- money.

In the latest turn of events around The Turtles‘ crusade to collect on royalties for songs recorded prior to 1972, Pandora has filed an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, arguing — in a creative gambit reminiscent of the company’s failed play at buying a South Dakota radio station — that The Turtles are infringing on its first amendment right to publicly perform the band’s artistic works.

The Turtles filed a lawsuit against Pandora in September, right after a California judge ruled that SiriusXM should be paying royalties for pre-1972 recordings under state copyright law. The satellite radio service has long argued that it doesn’t have to pay master recording performance royalties for pre-1972 albums to labels and artists because the U.S. didn’t recognize the master recordings copyright until 1972. Labels and artists have long maintained that individual state law confers copyright to master recordings and that digital services like SiriusXM and Pandora were infringing on those copyrights. But no one had filed legal action on this issue until this summer, when a spate of lawsuits were brought against the two services in different states by record labels, SoundExchange and The Turtles. So far, Flo & Eddie — singers in The Turtles — have won their suits in New York and the previously mentioned suit in California.

In its defense against Flo & Eddie, who filed the lawsuit against Pandora for non-payment of master recordings performance royalties, the digital radio service claims that the duo are asserting rights that do not exist and that, if they do exist, the duo has failed to assert any such right in the 47 years since their music was released. Besides that, Pandora says the anti-SLAPP statute protects free-speech conduct by striking rights-burdening claims at the outset of litigation. Citing the California Civil Code of procedure, Pandora is seeking an order that would strike all of  the causes of action in the Flo & Eddie complaint.


Pandora claims that The Turtles’ recordings enjoyed no state law copyright right protection because California sees publishing a work as extinguishing its state copyright protection, which happens as soon as a record is released and sold, allowing those who buy the record to use it in any manner they choose. The 1982 revision to California state copyright law — which cleared away state statutes made redundant by federal law in the 1976 Copyright Act and clarified and narrowed other provisions of state law — does not “resurrect” copyright protection, after its been published, according to the the Pandora motion. That’s why the state law rights that the Flo & Eddie complaint cites, “do not exist,” as the motion states.

As such, the “Flo & Eddie’s complaint is legally defective on its face and burdens Pandora’s First Amendment rights,” reads Pandora’s motion. “Plaintiff seeks to enjoin a broadcaster from communicating media to the public. The anti-SLAPP law was created precisely for baseless attacks like this.” Pandora added the the California Code of Civil Procedure “expressly recognizes that anti-SLAPP motions can be brought to strike lawsuits of exactly this type.”

Even if the Judge strikes down the motion, it allows Pandora to file an appeal, which could move the case immediately to another judge in the U.S. Court of Appeals for the Ninth Circuit. As the Flo & Eddie lawsuit currently filed against Pandora is before the very same judge, U.S. District Judge Philip S. Gutierrez, who ruled in their favor on the very same issue against SiriusXM, a change of venue is something that Pandora is likely aiming for with this motion.

“This is a procedural step in our existing case,” Pandora spokesman Dave Grimaldi said in a statement. “It doesn’t doesn’t change our legal position or the core elements of our legal argument.”

He adds, “Pandora would be open to supporting the full federalization of pre-’72 sound recordings under a technology-neutral approach that affords libraries, music services and consumers the same rights and responsibilities that are enjoyed with respect to all other sound recordings.”

The anti-SLAPP motion was filed by Latham & Watkins attorneys Andrew M. Gass and James K. Lynch on behalf of their client Pandora.

One of the Turtles’ lawyers, Henry Gradstein, a partner with Gradstein & Marzanno in Los Angeles, says of the Pandora motion, “It’s not what the anti-SLAPP was intended to protect, and substantively the motion doesn’t have merit.”