A California federal district court ruled that Sirius XM infringed rights guaranteed to plaintiffs by California state statute. See Flo & Eddie Inc. v. Sirius XM, No. 13‐cv‐5693, 2014 U.S. Dist. LEXIS 139053, at *22‐23 (C.D. Cal. Sept. 22, 2014). Flo & Eddie of the musical group The Turtles sued Sirius XM in August 2013 for infringement of sound recording copyrights because Sirius XM was not paying public performance royalties, yet performed the sound recordings owned by Flo & Eddie, Inc. The Central District of California Court ruled that sound recordings published prior to February 15, 1972 include a public performance right under common law and codified under Cal. Civ. Code § 980 and such right may be infringed if permission is not secured before the sound recording is played on satellite radio. The Flo & Eddie No. 13‐cv‐5693 Fed. Cal. case continues on other grounds with the assumption the summary judgment ruling will be appealed by Sirius XM.
In Flo & Eddie litigation in federal court in New York, the district court indicated that the public performance of Pre-72 sound recordings constitutes common law copyright infringement and unfair competition under New York law. See Flo & Eddie Inc. v. Sirius XM, No. 13‐cv‐5784, 2014 U.S. Dist. LEXIS 166492, at *40‐44, *50‐52 (S.D.N.Y. Nov. 14, 2014) (denying Sirius XM’s motion for summary judgment, and asking Sirius XM to show cause why judgment should not be entered on behalf of plaintiffs), reconsideration denied, 2014 U.S. Dist. LEXIS 174907 (Dec. 12, 2014). The court held:
the New York Court of Appeals would recognize the exclusive right to public performance of a sound recording as one of the rights appurtenant to common law copyright in such a recording.
Id. An interlocutory appeal in the case was granted on April 15, 2015.
A settlement was reached in June 2015 in similar pending litigation in a California state court case brought by major record labels against Sirius XM. Capitol Records, LLC v. Sirius XM, No. BC520981 (Cal. Super. Ct. Oct. 14, 2014) (order regarding jury instructions). Arguably many of the plaintiffs that settled out with Sirius XM would have joined the Turtles class action which was certified in May 2015. How does that impact the Turtles and their ability to reach a settlement?
Taking cases coast-to-coast, Flo & Eddie, Inc. also sued Sirius XM in Florida. Flo & Eddie, Inc, v. Sirius XM Radio, Inc., No. 1:13-CV-23182 (S.D. Fla. filed Sept. 3, 2013).
New media always brings about new questions on how far copyright protection extends. When looking at interactive and non-interactive digital services, the courts may be applying federal or state law depending on what year the sound recording was “fixed.” In addition the courts have to look at the DMCA to determine how far the Safe Harbor provisions reach to protect the services providing the digital content.
Again, this article does not address the concerns of the music composition copyright owner. That side of the equation has its own issues, some similar and some different, that are also being addressed via the court system and the Copyright Royalty Board. In addition to the cases discussed, there’s plenty of pending litigation to keep an eye on for the future.
To find links to most of the cases and articles cited herein (and bonus materials) visit https://delicious.com/tamerabennett/utlaw15.
Other cases to watch:
Flo & Eddie, Inc. v. Pandora Media, Inc., No. 2:14-cv-07648-PSG-RZ (C.A.C.D. filed Oct. 2, 2014).
Capitol Records, LLC v Pandora Media, Inc., No. 651195/2014 (N.Y. Sup. Ct. filed Apr. 17, 2014).
Zenbu Magazines LLC v. Escape Media Group, Inc., No. 1:15-cv-00349-MKB-RER (N.Y.E.D. filed Jan. 22, 2015).
Zenbu Magazines LLC v. Sony Computer Entertainment America LLC, No. 3:15-cv-00310-VC (C.A.N.D. filed Jan. 22, 2015).
UMG Recs., Inc. v. Escape Media Group, Inc., No. 1:2011cv08407 (N.Y.S.D. filed Nov. 18, 2011).