Rapid Developments In Turtles' Pre-1972 Recordings Suits

A California federal judge rejected dueling, Hail-Mary motions by both sides in a key battle over copyrights to pre-1972 recordings. U.S. District Judge Philip Gutierrez in Los Angeles refused to reconsider his earlier ruling that Sirius XM Radio faces copyright liability for broadcasting pre-1972 songs without paying royalties. Flo & Eddie Inc. v. Sirius XM Radio Inc., 13-5693. But he also rebuffed a bid to sanction Sirius and its lawyers at O'Melveny & Myers for making allegedly frivolous arguments, finding that O'Melveny hadn't acted recklessly or tried to mislead the court.

“Sirius XM did try to fit its arguments within some general federal case law on reconsideration motions, and hoped that the court would be amenable to considering theories that Sirius XM's prior counsel did not assert at summary judgment,” Gutierrez ruled. “This motion is more fairly characterized as a long-shot than a piece of harassment.”

Founders of the rock band The Turtles, through their company Flo & Eddie Inc., sued Sirius in California, New York and Florida in 2013, claiming that they have the exclusive right to “publicly perform” their music. Federal copyright law doesn't cover performance rights to sound recordings made prior to 1972, but Flo & Eddie convinced District Judge Gutierrez last year that artists retain public performance rights under Calif. Code '980(a)(2) and California misappropriation common law.

The NY Case

Meanwhile, in February 2014, in the ongoing fight between Sirius XM Radio and The Turtles in New York federal court, U.S. District Judge Colleen McMahon ruled that she'd allow Sirius to ask the U.S. Court of Appeals for the Second Circuit to immediately review her ruling that holders of common law copyrights to pre-1972 recordings have exclusive public performance rights to their recordings under state common law. Flo & Eddie Inc. v. Sirius XM Radio Inc., 13-5784.

If upheld by the appeals court, the underlying November 2014 decision by District Judge Colleen McMahon would entitle the owners of older recordings to demand royalties that Sirius, Pandora and other radio operators have long assumed they don't have to pay. In granting Sirius' bid to seek interlocutory appeal, Judge McMahon noted “the complicated history of public performance rights and copyright” and said it “warrants a close look by a controlling court.”

“If the court's holding that [the holders of common law copyrights in pre-1972 sound recordings] do have such a right is incorrect, then significant portions of this lawsuit ' including the public performance copyright infringement and unfair competition claims ' will have to be dismissed,” she wrote.

“If, however, this court's ruling is affirmed,” Judge McMahon continued, “then Sirius and the holders of copyrights in pre-1972 sound recordings will turn their attention to the thorny but ultimately soluble issue of how to license and compensate public performances of those recordings.”

Sirius had tried and failed to convince Judge McMahon to reconsider her ruling. In California, District Judge Gutierrez refused to allow an immediate appeal. But Sirius was awaiting a decision on a mandamus petition it filed on the same liability issue before a California state appeals court. In that case in L.A. Superior Court, Sirius is fighting claims over pre-1972 recordings brought by Capitol Records, Sony Music Entertainment, UMG Recordings, Warner Music Group and ABKCO Music & Records. Capitol Records LLC v. Sirius XM Radio Inc., 520981.

Sirius XM is represented in all of the cases by a team from O'Melveny & Myers led by Daniel Petrocelli. (O'Melveny joined the litigation after the adverse rulings for Sirius last year, replacing lawyers from Weil, Gotshal & Manges; Sheppard, Mullin, Richter & Hampton; and Kramer Levin Naftalis & Frankel.) Harvey Geller and Henry Gradstein of the L.A.-based Gradstein & Marzano represent Flo & Eddie.

In an e-mailed statement highlighting the stakes in the litigation, Sirius lead counsel Daniel Petrocelli of O'Meveny & Myers praised Judge McMahon's decision to tee up the New York appeal. “Appellate review will be an important step toward resolving issues of crucial significance that threaten to upset more than a half-century of established practice in the broadcast and music industries,” Petrocelli wrote.

More Pre-'72 Suits

In the latest round of pre-1972 recordings lawsuits, the Hausfeld law firm filed four proposed class actions against online music-streaming services. The lawsuits were filed in February in the Northern District of California on behalf of Beach Road Music, the copyright holder to more than 3,000 pre-1972 music recordings including “16 Candles,” a 1959 hit by the Crests that peaked at No. 2 on the Billboard chart. Beach Road also holds the right to recordings by the Rivieras, the Duprees, the Harptones, Trade Martin and Adam Wade.

According to these complaints, Apple Inc., Sony Computer Entertainment America LLC, San Francisco-based Rdio Inc. and the Escape Media Group Inc. are profiting from offering pre-1972 recordings on their streaming services without permission in violation of California, New York and Florida state law. (See, e.g., Beach Road Music LLC v. Apple Inc., 2015cv00700.)

In the most recent ruling, in their pre-1972 recording suit against Pandora, Judge Gutierrez denied Pandora's anti-SLAPP motion to dismiss. Flo & Eddie Inc. v. Pandora Media Inc., 14-7648 (C.D. Calif. 2015). Judge Gutierrez found that Pandora's streaming of sound recordings is protected free speech activity. However, Gutierrez concluded that Flo & Eddie have meritorious claims to be paid by Pandora for the streaming of the recordings.

David Bario reports for The Am Law Litigation Daily, Lisa Shuchman is a Reporter for Corporate Counsel magazine, and Ross Todd is a Senior Reporter with The Recorder, all ALM siblings of Entertainment Law & Finance.

A California federal judge rejected dueling, Hail-Mary motions by both sides in a key battle over copyrights to pre-1972 recordings. U.S. District Judge Philip Gutierrez in Los Angeles refused to reconsider his earlier ruling that Sirius XM Radio faces copyright liability for broadcasting pre-1972 songs without paying royalties. Flo & Eddie Inc. v. Sirius XM Radio Inc., 13-5693. But he also rebuffed a bid to sanction Sirius and its lawyers at O'Melveny & Myers for making allegedly frivolous arguments, finding that O'Melveny hadn't acted recklessly or tried to mislead the court.

“Sirius XM did try to fit its arguments within some general federal case law on reconsideration motions, and hoped that the court would be amenable to considering theories that Sirius XM's prior counsel did not assert at summary judgment,” Gutierrez ruled. “This motion is more fairly characterized as a long-shot than a piece of harassment.”

Founders of the rock band The Turtles, through their company Flo & Eddie Inc., sued Sirius in California, New York and Florida in 2013, claiming that they have the exclusive right to “publicly perform” their music. Federal copyright law doesn't cover performance rights to sound recordings made prior to 1972, but Flo & Eddie convinced District Judge Gutierrez last year that artists retain public performance rights under Calif. Code '980(a)(2) and California misappropriation common law.

The NY Case

Meanwhile, in February 2014, in the ongoing fight between Sirius XM Radio and The Turtles in New York federal court, U.S. District Judge Colleen McMahon ruled that she'd allow Sirius to ask the U.S. Court of Appeals for the Second Circuit to immediately review her ruling that holders of common law copyrights to pre-1972 recordings have exclusive public performance rights to their recordings under state common law. Flo & Eddie Inc. v. Sirius XM Radio Inc., 13-5784.

If upheld by the appeals court, the underlying November 2014 decision by District Judge Colleen McMahon would entitle the owners of older recordings to demand royalties that Sirius, Pandora and other radio operators have long assumed they don't have to pay. In granting Sirius' bid to seek interlocutory appeal, Judge McMahon noted “the complicated history of public performance rights and copyright” and said it “warrants a close look by a controlling court.”

“If the court's holding that [the holders of common law copyrights in pre-1972 sound recordings] do have such a right is incorrect, then significant portions of this lawsuit ' including the public performance copyright infringement and unfair competition claims ' will have to be dismissed,” she wrote.

“If, however, this court's ruling is affirmed,” Judge McMahon continued, “then Sirius and the holders of copyrights in pre-1972 sound recordings will turn their attention to the thorny but ultimately soluble issue of how to license and compensate public performances of those recordings.”

Sirius had tried and failed to convince Judge McMahon to reconsider her ruling. In California, District Judge Gutierrez refused to allow an immediate appeal. But Sirius was awaiting a decision on a mandamus petition it filed on the same liability issue before a California state appeals court. In that case in L.A. Superior Court, Sirius is fighting claims over pre-1972 recordings brought by Capitol Records, Sony Music Entertainment, UMG Recordings, Warner Music Group and ABKCO Music & Records. Capitol Records LLC v. Sirius XM Radio Inc., 520981.

Sirius XM is represented in all of the cases by a team from O'Melveny & Myers led by Daniel Petrocelli. (O'Melveny joined the litigation after the adverse rulings for Sirius last year, replacing lawyers from Weil, Gotshal & Manges; Sheppard, Mullin, Richter & Hampton; and Kramer Levin Naftalis & Frankel.) Harvey Geller and Henry Gradstein of the L.A.-based Gradstein & Marzano represent Flo & Eddie.

In an e-mailed statement highlighting the stakes in the litigation, Sirius lead counsel Daniel Petrocelli of O'Meveny & Myers praised Judge McMahon's decision to tee up the New York appeal. “Appellate review will be an important step toward resolving issues of crucial significance that threaten to upset more than a half-century of established practice in the broadcast and music industries,” Petrocelli wrote.

More Pre-'72 Suits

In the latest round of pre-1972 recordings lawsuits, the Hausfeld law firm filed four proposed class actions against online music-streaming services. The lawsuits were filed in February in the Northern District of California on behalf of Beach Road Music, the copyright holder to more than 3,000 pre-1972 music recordings including “16 Candles,” a 1959 hit by the Crests that peaked at No. 2 on the Billboard chart. Beach Road also holds the right to recordings by the Rivieras, the Duprees, the Harptones, Trade Martin and Adam Wade.

According to these complaints, Apple Inc., Sony Computer Entertainment America LLC, San Francisco-based Rdio Inc. and the Escape Media Group Inc. are profiting from offering pre-1972 recordings on their streaming services without permission in violation of California, New York and Florida state law. (See, e.g., Beach Road Music LLC v. Apple Inc., 2015cv00700.)

In the most recent ruling, in their pre-1972 recording suit against Pandora, Judge Gutierrez denied Pandora's anti-SLAPP motion to dismiss. Flo & Eddie Inc. v. Pandora Media Inc., 14-7648 (C.D. Calif. 2015). Judge Gutierrez found that Pandora's streaming of sound recordings is protected free speech activity. However, Gutierrez concluded that Flo & Eddie have meritorious claims to be paid by Pandora for the streaming of the recordings.

David Bario reports for The Am Law Litigation Daily, Lisa Shuchman is a Reporter for Corporate Counsel magazine, and Ross Todd is a Senior Reporter with The Recorder, all ALM siblings of Entertainment Law & Finance.