Do you remember the Turtles? They were the originators of such memorable hits as “Happy Together,” “It Ain’t Me Babe,” and “She’d Rather Be with Me.”  The band was formed in 1965 and by 1970 was on the decline.

You may think that when the Turtle’s hits were recorded they were protected by U.S. copyright law from unauthorized performances. You may not know, however, that copyright law did not protect sound recordings until 1972 at which time Congress provided federal copyright protection for sound recordings made only after February 15, 1972.  Keep in mind we’re talking about the recordings not the music and lyrics, which still enjoy copyright protection.  As you can imagine, the body of sound recordings in the pre-1972 era is vast and radio companies such as SiriusXM, relying on U.S. Copyright law, broadcast these recordings royalty free.  According to one report, SiriusXM transmits thousands of pre-1972 recordings on a daily basis.

So, Instead of broadening copyright law, Congress left it up to the states to protect earlier sound recordings, a strategy that was blessed by the U.S. Supreme Court in the 1973 case of Goldstein vs California.  In Goldstein, in which petitioners were charged with the unauthorized duplication of recordings of performances made during the pre-protection era, the Supreme Court held that state statutes, in particular those of California, which sought to protect pre-1972 sound recordings, were constitutional and did not impinge upon the federal authority to regulate copyrights.

Now back to the Turtles. Representatives of the band, Flow & Eddie, have filed class action suits against SiriusXM for infringing their state rights by playing Turtles sound recordings over the air.  They rely on state law claims for misappropriation, unfair competition, conversion and other causes of action.  Flow & Eddie filed similar claims in California, New York State and Florida.  In September, a federal judge in California found SiriusXM liable for infringement under California state law, which SiriusXM intends to appeal. Most recently, on November 14th, the U.S. District Court for the Southern District of New York denied SiriusXM’s motion for summary judgment of non-infringement on grounds that The Turtles have performing rights to their pre-1972 recordings under New York state law. Clearly, these cases demonstrate a trend in the law, which will protect pre-1972 sound recordings, perhaps, engender more state legislation in this area, and will undoubtedly increase the cost of a SiriusXM subscription.

(Turtle image: Lissemys punctata1″ by L. Shyamal, animal courtesy Saleem Hameed – Own work. Licensed under Creative Commons Attribution)

– Adam G. Garson, Esq.