Larry Iser’s Daily Journal article: A startling copyright decision

On October 2, 2014, KWIKA founding/managing partner Larry Iser, who for nearly two decades has litigated on behalf of his clients over copyright issues concerning sound recordings, contributed an opinion piece to the Los Angeles Daily Journal on the recent decision by United States District Judge Philip Gutierrez in Flo & Eddie Inc. v. Sirius XM Radio Inc., et al.  At the Daily Journal’s request, Larry analyzed Judge Gutierrez’s against-the-grain holding that interprets California’s copyright statute to grant the owners of pre-1972 sound recordings (which are not covered by the federal copyright scheme) the exclusive right to “publicly perform” them, which includes, among other things, radio and television broadcast, and the music heard in bars and restaurants.  The decision bucks decades of industry custom and practice that has allowed recordings of this vintage to be publicly performed free of royalty payments.

Flo & Eddie Inc. was formed by two founding members of the ’60s band The Turtles, best known for its number-one hit song of 1967, Happy Together.  Sirius XM Radio Inc. is a subscription radio/Internet station that broadcast a number of pre-1972 sound recordings by The Turtles (and many, many other artists) over several years.

Seemingly out of the blue, without even contacting Sirius XM, Flo & Eddie filed suit against Sirius XM, claiming that Sirius needed a license to broadcast their music.  Nor had the former Turtles ever made such a demand of any traditional radio station.

Relevant copyright law milestones:

  • 1972:  Congress enacted the Sound Recording Act, which gave copyright protection to sound recording owners for the first time but specifically excluded the right of public performance.
  • 1995:  Congress enacted the Digital Performance Right in Sound Recordings Act, which gave owners of post-1972 sound recording copyrights the exclusive right of public performance by digital audio transmission only.

As Larry explained, Judge Gutierrez’s decision is based on California’s copyright statute, Civil Code Section 980(a)(2), which gives authors “exclusive ownership” of pre-1972 sound recordings but does not specify what that includes.  Extrapolating from federal copyright law, Judge Gutierrez held that such ownership includes the exclusive right to public performance.  But his decision is contrary to a recent holding in Los Angeles Superior Court by Judge Mary Strobel in a case brought by some of the major record labels against Sirius XM on similar grounds.  In that case, Judge Strobel ruled that the California statute is ambiguous and does not grant holders of pre-1972 sound recording copyrights the exclusive right to public performance.

Larry points out that the Constitution’s copyright clause, Article I, Section 8, in which the Founding Fathers wisely decided “to promote the Progress of Science and useful Arts” by giving “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” was never intended to grant permanent or exclusive ownership of every aspect of their creations.  When Congress chose to protect sound recordings as a copyrightable work in 1972, they deleted the public performance right.  Because of the passage of so much time, the vast majority of copyrights of pre-1972 sound recordings are held by record labels, not individual artists, which means that the original intent of copyright law—to protect the artist who created the work—is no longer part of the equation here.  “The decision will do nothing to advance the progress of music, and will inure largely to the benefit of record labels only.”