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Pre-1972 Sound Recordings State Law Copyright Litigation

LEGAL CASE

Pre-1972 Sound Recordings State Law Copyright Litigation

In the U.S., two copyrights generally exist for every song you hear on the radio or online. One relates to the underlying musical work (think sheet music). It typically belongs to a music publisher or songwriter. The other copyright relates to the recorded performance of the work, and typically belongs to a record label or recording artist. These cases are about the latter right.

Although copyrights in sound recordings exist for the reproduction and distribution of the work, they don’t include a general right to control public performances, except for a limited right that covers “digital audio transmissions” like Internet and satellite radio. That’s why AM and FM radio stations, and businesses like restaurants that play music, have never had to pay record labels or recording artists, nor ask their permission. The labels have tried for many decades to win a performance right, but so far neither Congress nor state legislatures have created one. (Songwriters and music publishers do get paid, typically through collecting societies ASCAP, BMI, and SESAC, for the right to publicly perform the composition). But recordings made before February 15, 1972 aren’t covered by federal law at all. Instead, they fall under a patchwork of state laws, most of them vague and scarcely adapted for the digital age.

The strange status of pre-1972 recordings created an opportunity for recording artists and labels to try getting from the courts what Congress has never agreed to give them: a right to control public performances.

The issue of whether pre-1972 sound recordings are restricted by state copyright law is currently being litigated in at least the following cases:

  • Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-cv-5784 (CM) (S.D.N.Y.), currently on appeal, No. 15-1164-cv (2d Cir.)
  • Flo & Eddie, Inc. v. Pandora Media Inc., No. 2:14-cv-07648-PSG (C.D. Cal.), currently on appeal, No. 15-55287 (9th Cir.)
  • Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 1:13-cv-23182-DPG (S.D. Fla.), currently on appeal, No. 15-13100-AA (11th Cir.)
  • Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 2:13-cv-05693-PSG (C.D. Cal.)
  • Sheridan v. Sirius XM Radio, Inc., No. 1:15-cv-07056 (S.D.N.Y.)
  • Sheridan v. iHeartMedia, Inc., 1:15-cv-06747-GBD (S.D.N.Y.)
  • ABS Entertainment, Inc. v. iHeartMedia Inc., No. 1:15-cv-06807-ALC (S.D.N.Y.)
  • Sheridan v. iHeartMedia, Inc., No. 2:15-cv-04067-RSG (C.D. Cal.)
  • ABS Entertainment, Inc.. v. CBS Corp., No. 2:15-cv-06257-PA (C.D. Cal.) 
  • ABS Entertainment, Inc. v. Cumulus Media Inc., No. 2:15-cv-06269-PA (C.D. Cal.)
  • ABS Entertainment, Inc. v. iHeartMedia, Inc., No. 2:15-cv-06252-PSG (C.D. Cal.) 

(Text last updated Sept. 10, 2015)

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