The wars being waged between artists, labels and services will be fought for the foreseeable future. Here’s one with some interesting twists in the road.
Flo & Eddie of The Turtles may have settled their royalties row with SiriusXM — but their fight with Pandora wages on and is currently being reviewed by the 9th Circuit Court of Appeals.
Howard Kaylan and Mark Volman, known as Flo & Eddie, sued Pandora in 2014, claiming the site’s operation infringes on their rights in sound recordings like “Happy Together” by essentially paying for only one CD and broadcasting it to scores of its users for a profit.
In February 2015, U.S. District Judge Philip Gutierrez denied Pandora’s motion to dismiss the suit under California’s anti-SLAPP statute. Gutierrez found that “Although the conduct underlying the claims in this case constitutes ‘protected activity’ under the anti-SLAPP statute, Flo & Eddie has demonstrated that its claims are meritorious enough to withstand the anti-SLAPP motion.”
While the judges review Pandora’s appeal, it gets interesting because of the age of these recordings.
Sound recordings fixed prior to 1972 aren’t protected by federal copyright law, and Pandora’s attorney Gergory Garre argues that The Turtles’ lost state law protection for their hits in the 1960s when they “published” them by selling them to the public.
The California copyright law in effect at the time stated: “The author or proprietor of any composition in letters or art has an exclusive ownership in the representation or expression thereof as against all persons except one who originally and independently creates the same or a similar composition … If the owner of a composition in letters or art publishes it the same may be used in any manner by any person, without responsibility to the owner insofar as the law of this State is concerned.”
Flo & Eddie attorney Henry Gradstein argues the second part of the statute was never intended to apply to sound recordings and, even if it was, selling records or playing them on the radio don’t constitute “publishing.”
It’ll be interesting to see how this all plays out. Read the whole story here.