By: Alexandra Wilson

On September 22nd, the US District for the Central District of California, in Flo & Eddie Inc. v. Sirius XM Radio Inc., held that California’s copyright statute recognizes a copyright owner’s exclusive right to publically perform pre-1972 sound recordings.[i] Subscription-based satellite radio services, including Sirius XM and Pandora, are and have been playing pre-1972 sound recordings, including the song “Happy Together” by the Turtles, without paying royalties to the copyright owners; the Federal Copyright Act of 1976, which requires users (including Sirius) to pay royalties to copyright owners of sound recordings, does not apply to pre-1972 recordings because the Act does not apply retroactively—this puts the issue within the exclusive domain of state common law.

The Court first assessed the ‘plain meaning’ of the state’s copyright statute; section 980(a)(2) provides, “The author of an original work of authorship consisting of a sound recording initially fixed prior to Feb 15, 1972, has an exclusive ownership therein until Feb 15, 2047, as against all persons….” The Court determined that ‘exclusive ownership’, on its most basic and inclusive level, is having the right to use and possess the recording to the exclusion of others; because there is only one exception listed to this right (that exception being an individual’s right to make a ‘cover’ of the song), the legislature intended the ownership of a sound recording in California to include all rights (including the exclusive right to public performance) that can attach to intellectual property. Further, no previous state statute has interfered with this interpretation—California has never expressly denied sound recording owners the exclusive right to publically perform their sound recordings.

What does this mean for services like Sirius XM and Pandora? The ruling, which is sure to be appealed, may either motivate these services to start paying the royalties they have refused to pay in the past, to musicians including Bob Dylan and Neil Young, or may motivate these services to stop playing pre-1972 sound recordings altogether;[ii] SoundExchange, an independent digital performance rights organization, estimates that nonpayment of pre-1972 sound recording royalties cost record labels and artists about $60 million in 2013 alone.[iii] There may also be lobbying efforts to change the federal copyright law to include the protection of pre-1972 sound recordings, namely the passage of the RESPECT Act, which “requires digital radio to treat all sound recordings equally, regardless of the date they were made.”[iv] What is certain is that these types of lawsuits will popup state-by-state, challenging common law copyright, and determining whether this right exists in states other than California.[v] Further, these services will have to make up the money they will lose from royalty payments; these new costs will surely be passed on to the consumer.

[i] See generally Flo & Eddie Inc. v. Sirius XM Radio Inc., et al., case number 2:13-cv-05693-PSG-RZ.

[ii] Ed Christman, SiriusXM Copyright Battle: What Does Latest Ruling Mean?, Billboard, (September 23, 2014),

[iii] SoundExchange Launches ‘Project72’ Campaign in Support of the RESPECT ACT, SoundExchange, (May 29, 2014),

[iv] Id.

[v] Wallace E.J. Collins III, A Copyright Attorney on the Ramifications of the SiriusXM Legal Defeat, Hypebot, (September 26, 2014),

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