The lead vocals for Frank Zappa’s fine 1970 Chunga’s Revenge album were performed by a duo billed as the THE PHLORESCENT LEECH & EDDIE. It was a badly kept secret that this was actually Howard Kaylan and Mark Volman, founders of the 60s soft rock band the Turtles, who used the pseudonym due to a lingering contractual dispute with their former label. After a brief stint with the Mothers of Invention, they began recording and touring as Flo & Eddie. Now their corporate alter ego, Flo & Eddie, Inc., which owns the rights to all of the Turtles’ master recordings (including such bona fide classics as “Happy Together” and “Eleanore”) is taking the lead in the pursuit of one of the holy grails of pre-1970s recording artists–royalties for the use of their old records by digital transmission services. Its class action suit against Sirius XM, filed last week in a California state court, has the aura of a test case which, if successful, would have broad ramifications for other broadcasters offering interactive features.
Some background is necessary to appreciate the ambitiousness of F&O’s claim, beyond simply noting its demand for damages in excess of $100,000,000.00 on behalf of itself and others similarly situated. In music, it is important to distinguish between two copyrights recognized under Federal law: the copyright in a composition (the words and music apart from any particular performance of them); and the copyright in a sound recording (a performance of the composition together with the production and engineering that goes into making a master). The scope of these rights differs in a number of respects, but most importantly for present purposes the sound recording copyright only applies to masters made after February 15, 1972, and it does not include an exclusive right to public performance (which is why songwriters, through ASCAP, BMI and SESAC, can collect a royalty from radio, but recording artists cannot). Amendments to the copyright law beginning in the 1990s created various royalty obligations to recording artists for use of their post-1972 recordings by digital broadcast outlets, though traditional terrestrial radio remains exempt.
A handy crib sheet that I prepared for a talk a while back, detailing this complicated matrix of rights, can be found here. The upshot of all this is that when a 60s classic like “Happy Together” is played on radio, whether terrestrial or internet, there is no royalty paid to the owner of master recording or to the artists whose performance is captured on it.
Flo & Eddie, Inc.’s complaint takes a clever tack. The Supreme Court has ruled that Federal copyright law does not pre-empt all state protections of material that falls outside the scope of Federal protection. Pre-1972 recordings retain some protection under common law copyright or, in the case of California, a state statute which provides that “[t]he author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047.” Such protections do not include an exclusive right to publicly perform a sound recording which has been duly purchased or obtained, and thus have not to this point been used to claim royalties from radio. But the complaint contends that certain interactive services provided by Sirius XM, beyond the mere play of the recordings over the satellite, such as “on demand” and “replay” features, constitute misappropriation and conversion of the recordings under state law.
This should be interesting to watch, though I would not be surprised if action by Congress supersedes whatever outcome Flo & Eddie obtains in the California courts.