the turtlesMight there be a loop hole around the Copyright Act section 114 statutory license covering public performances of digital audio transmissions?  The Turtles think so and the Sixties rockers have brought a class-action lawsuit against Sirius XM, claiming the satellite radio station is playing their music without their permission, violating their sound recording rights.

The Turtles’ infringement claims are based on California law, not federal copyright law.  That’s because their songs, including their hit Happy Together, were recorded before 1972 and Congress had not yet extended copyright to include protection for sound recordings. 

The Sound Recording Amendment of 1971 extended federal copyright to sound recordings fixed on or after Feb. 15, 1972.  Recordings fixed before that date remain subject to state or common law copyright.  Recording artists rights further were extended with The Digital Performance Right in Sound Recordings Act of 1995, which acknowledges a performance right in digitally transmitted public performances as covered in sections 106, 112 and 114.  Section 114 of the Copyright Act requires statutory licenses for digital audio transmissions by satellite radio stations and web casters.

The Turtles don’t have to bring their claim against Sirius under federal copyright laws, they contend, because in 1972 Congress hadn’t retroactively protected songs recorded before that time, meaning state laws govern. If so, potential causes of action could include misappropriation, as well as violation of state specific statutes protecting sound recordings.  A California court may need to decide, among other issues, if the Golden State’s laws cover public performances or just reproductions.

If this legal argument prevails, this also may mean that fewer pre-1972 sound recordings will get radio play because fees, as spelled out by statute, will be lacking. Broadcasters may hesitate to seek permission from individual rights-holders as this may prove too inconvenient; major labels and artists may not suffer as much neglect in this scenario but it could prove punishing for independent artists.

As for the Turtles, is Happy Together an earworm or classic wax?