Pandora had long thought it could use pre-1972 recordings free of charge, but the rock band The Turtles are trying to prove them wrong. Last week, Judge Philip S. Gutierrez denied Pandora’s motion to dismiss.  This is not the first time the signers from the Turtles, suing as Flo & Eddie, Inc., have been successful against such companies.  Pandora hoped to dismiss the case because Judge Gutierrez had previously found for Flo & Eddie in a similar lawsuit against SiriusXM.

It is currently unclear whether state statutes and common-law rights give owners an exclusive right to public performance. If so, Pandora and similar services would have to pay to play. In cases against Sirius, federal judges in California and New York and a state judge in California have all ruled for The Turtles. Similar charges have been brought by other plaintiffs against various providers of online radio, such as Google and Apple.

The confusion began when Congress enacted a copyright law applicable to sound recordings in 1972; however, this protection did not extend to coverage to public performance. Congress decided it was not retroactive, which allowed state statutes and common-law rights to continue to govern any already existing works. This created conflicting and confusing laws requiring consideration of when a piece was created to determine what law applied. In 1995, Congress granted protection to digital public performance applying to satellite radio and online music but not to over-the-air radio. The confusion was exacerbated further when the Digital Millennium Copyright Act of 1998 required royalties be paid to labels for pre-1972 albums.

The Turtles argue California law protected their music as of 1983, thirteen years before the federal government protected them. Pandora argues the 1982 changes left things as they were, and its actions are protected as free speech under California’s anti-SLAPP statute, which protects anyone who buys a copy of a sound recording from lawsuits for simply playing the purchased recording. Pandora’s attorneys arguing finding the recordings not protected under the First Amendment would mean DJs and record stores have to pay to play. The Turtles argue that would be abuse of the anti-SLAPP process to deny it payment for use of its work.

–Chastity Bobo



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