Sirius Radio has taken a shellacking in courts so far this year but other music formats shouldn't assume they're safe. A third case involving Flo & Eddie of The Turtles (best known for tracks such as "Happy Together") has ended in New York with a similar ruling to the previous two cases: A judge has ruled that despite the band's catalogue existing before 1972, SiriusXM had no right to use it without compensating the performers (from The Hollywood Reporter).
The foundation of the cases lies in the fact that music only began falling federal copyright protection during 1972 and music playback companies have always acted under the presumption that music that came before 1972 didn't apply. It seems somewhat silly now but consider the implications: All classic rock stations or karaoke bars that previously played music from anytime prior to '72 could now be forced to start paying royalties on it. It's a decision that could force many shut-downs or changes in format.
The first two lawsuits involving Flo & Eddie and SiriusXM occurred in California. A judge ruled in favor of the group during September and then a separate court confirmed the ruling during October. The newest ruling came from the East Coast capital of music in New York City.
A theme in the decision of federal judge Colleen McMahon was that just because no one went out of their way to enforce the rights of performers pre-1972 doesn't mean that those rights didn't exist. Specifically she commented that the "acquiescence by participants in the industry" only showed "that they failed to act on it." She also covered the judicial system, suggesting that the body's silence on the subject for 40-plus years implies pre-1972 performers share the same rights as those in the modern era, not different ones.
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