Judge Doles Out Devastating Pun In Decision on Turtles v. SiriusXM Case

By Andy Cush

Two founding members of the Turtles, best known for their 1967 #1 hit “Happy Together,” have spent the last several years embroiled in multiple lawsuits in multiple states over a very particular, and potentially very important, facet of U.S. copyright law: the payment of royalties from broadcasters to rights holders on sound recordings made before 1972. Today, a New York appeals court ruled against Turtles members Mark Volman and Howard Kaylan in their lawsuit against the satellite radio conglomerate SiriusXM over pre-1972 recordings. Just as important, if you’re not interested in tracking the endless vagaries of music copyright law, the presiding judge slipped a sick double entendre burn into her denunciation of the Volman and Kaylan’s claims.

Understanding the context and implications of the Turtles’ suits may require a quick primer on music copyright. First, you should know that there are two separate copyrights that exist to cover any recorded song. There is the copyright on the composition of the song itself, its melody and lyrics, which is held by the songwriter. And there is the copyright on a given recording, which might be held by the performers who recorded it, or it might be held by their record label. For the first several decades of the music industry as we know it, federal copyright law didn’t concern itself with recordings at all–only compositions–because the latest iteration of the Copyright Act had been enacted in 1909, when sound recording was still in its infancy.

That changed with the Sound Recording Amendment of 1971, when commercial cassette tapes and the bootlegging they made possible prompted Congress to extend copyright protection to sound recordings. However, for reasons that aren’t really clear to anyone, they only granted that protection to recordings made after February 14, 1972. (Seriously, no one really knows why. “Congress did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so,” reads a 2011 report from the U.S. Copyright Office, the website Plagiarism Today points out.)

Even after the amendment, radio stations didn’t pay royalties on sound recording copyrights, no matter when the songs they played were recorded, and they still don’t. Terrestrial stations pay royalties to composers, but not to recording rightsholders, because, as a judge wrote in a 2003 lawsuit over music copyright, “The recording industry and broadcasters existed in a sort of symbiotic relationship wherein the recording industry recognized that radio airplay was free advertising that lured consumers to retail stores where they would purchase recordings.” However (and you must have known there was another however coming), the rules changed again with the rise of digital music in 1995, and under those changes, music services that broadcast digitally, like SiriusXM and Pandora, do have to pay recording royalties. But due to Congress’s inscrutable decision not to grandfather old recordings into the new copyright law back in the 1970s, SiriusXM only has to pay for recordings released after 1972.

Which gets us back to The Turtles. In their lawsuits against SiriusXM, Volman and Kaylan are arguing that they should receive royalty payments for any Turtles recordings they play on the air, and that rightsholders to all pre-1972 recordings should be paid as well. This would place a pretty big financial burden on SiriusXM and other services like it: according to Quartz, Pandora paid out 53% of its revenue in royalties on recordings in 2013, a percentage that would increase significantly if pre-1972 recordings received protection. Remember, it’s not as if SiriusXM and Pandora are getting the music for free; they’re just paying the composers only, as terrestrial radio stations have been doing since the dawn of recorded music. The fact that The Turtles did not actually write either of their best known songs, “Happy Together” (penned for them by the songwriting duo Garry Bonner and Alan Gordon) and “It Ain’t Me Babe” (a Bob Dylan cover), and thus do not receive composition royalties for them, may or may not have had anything to do with their decision to pursue sound recording royalties.

Because federal copyright law unambiguously does not protect recordings made before 1972, The Turtles have taken their fight to state courts, arguing that state laws in New York, Florida, and California protect their right to receive royalties in some way. The question before the court today was whether New York law gives sound recording copyright holders rights over the public performance and broadcast of their recordings in the state, and appeals court Judge Leslie Stein ruled that it does not, which is good for SiriusXM and bad for The Turtles.

Stein’s written decision, finally, gets us to our devastating pun. (Emphasis added):

Instead, common sense supports the explanation…that the record companies and artists had a symbiotic relationship with radio stations, and wanted them to play their records to encourage name recognition and corresponding album sales. As the dissent acknowledges, the Federal Copyright Office explicitly recognized the technological advances affecting the interests of the various participants in the music industry as early as 1991. Nevertheless, those participants have co-existed for many years and, until now, were apparently “happy together.” While changing technology may have rendered it more challenging for the record companies and performing artists to profit from the sale of recordings, these changes, alone, do not now warrant the precipitous creation of a common-law right that has not previously existed.

Very nice.


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