By David Oxenford
The music battle continues over the question of whether state laws provide a public performance right in pre-1972 sound recordings.
While the highest court in New York has determined that there is no such right in that state ending the litigation there, cases continue in other states — notably California (where a Federal Court determined that there was a state right) and Florida (where the Federal Court determined that there was not).
The Florida case has been referred to that state’s highest court for an advisory ruling on the state of the state’s law on the issue. Earlier this week, the same thing happened in California. The U.S. Court of Appeals for the Ninth Circuit, which was hearing an appeal of the Federal District Court decision that there was a performance right under California law, decided to turn to the experts in California state law – the California Supreme Court – and ask for an interpretation of California law to determine if there is indeed a public performance right in these pre-1972 recordings.
Flo & Eddie, the performers behind the 1960s band the Turtles, stirred up a major music rights controversy several years ago by their high-profile lawsuits against music services including Sirius XM and Pandora as to whether there is a state law public performance right in pre-1972 sound recordings.
Those recordings are not covered under Federal Copyright law, so Flo & Eddie had the novel idea of bringing state law actions to enforce a purported state law performance right in these recordings – even though no such right had been enforced against any music service in the 45 years since Federal Copyright law decided to cover all new US sound recordings, and even though Federal law did not itself create any performance right in sound recordings until 1995, and then limited it solely to digital performances under a very carefully crafted statutory license scheme.
Even though no state law explicitly states that there is a performance right in these pre-1972 law, in California, the band has relied on a very general statutory grant of property rights in pre-1972 sound recordings to conclude that this broad grant included a performance right – even though there were no indication as to how such a performance right would function, or what limitations would apply, as are specified under Federal law. The U.S. Court of Appeals, in its order referring this question to the California Supreme Court, noted the general nature of this statutory grant, and asked the state court for an interpretation as whether it really is meant to include a performance right.
A decision on this issue in any state is binding only in that state. So, even were the California court to determine that a right exists in that state, that would have no bearing on the rights in any other state (and, as noted above, it is now clear that there is no such right in New York).
Whenever these decisions are released, we are often asked if the US Supreme Court will weigh in on this issue – and always answer “no” as this is not a question of Federal law or US Constitutional law which the Supreme Court would decide, but instead these are questions of whether any individual state has a public performance right – a decision on which the highest court in each state has the last word.
Of course, there have been calls for Congress to step in and federalize, to some degree or another, pre-1972 sound recordings. As of yet, there is no consensus on how that would be done or whether it should occur, and it has been considered for a long time.
Watch for more developments in this area in the state courts, and potentially in Congress as time goes by.
David Oxenford is a partner at the Washington, D.C. office of Wilkinson Barker Knauer. He represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters before the Federal Communications Commission, the courts and other government agencies for over 30 years.