Last year the corporate alter ego of former Turtles frontmen Howard Kaylan and Mark Volman—Flo & Eddie, Inc.—filed a class action lawsuit against Sirius XM. Their claim is that pre-1972 sound recordings, such as the Turtles’s classics “Happy Together” and “Eleanore,” which have no federal copyright protection, are nonetheless protected against unauthorized use under California state law. In…

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A recurring theme in our posts under the “Fair Use” tag has been the rise of “transformative use” as a litmus test that not only supplements, but often virtually supplants, the  four statutory fair use factors—the purpose and character of the secondary use, the nature of the original work, the amount of the original used, and the…

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