A Copyright Ruling in California Could Spell Trouble for Oldies Radio

And for bars and restaurants that play old music, too.


I'm not the one you want, Babe.

If you live in California and listen to oldies radio, don't be surprised if your favorite station suddenly decides to change its format. Thanks to a court decision that came down this week, it might become a lot costlier for stations in that state to play music made before 1972.

The plaintiffs in the case are the Turtles, a '60s band best known for the song "Happy Together." (More precisely, the plaintiffs are Flo & Eddie, a successor act with a litigious history. They own the rights to the Turtles' name and recordings.) The defendant is the satellite-radio megalith SiriusXM. In a nutshell, Flo & Eddie argue that the broadcaster violated their rights each time it transmitted a Turtles record without their consent.

This is where things get complicated. There is a difference between owning the rights to a song and owning the rights to a recording. (Bob Dylan owns the song "It Ain't Me Babe"; Flo & Eddie own the Turtles' recording of it.) If you own a song, you're entitled to a fee when it is played on the air. If you own a recording, the situation is more complex. You don't get royalties when the record is played on AM or FM radio. You do get royalties when it's played on Internet radio, for reasons related to fears of piracy. Because of the way the law defines "digital transmission," satellite stations have to pay those digital fees too.

But federal copyright protection didn't apply to sound recordings before February 15, 1972. SiriusXM takes the position that this means it doesn't have to pay when it airs music recorded before then. (That covers pretty much everything by the Turtles.) But the Copyright Act of 1976 says the states can still set the rules for those pre-1972 rights. And under California law, copyright holders have "exclusive ownership" to those recordings until 2047. Flo & Eddie argued that this gives them considerable control over what could be done with those old Turtles records. In this week's decision, U.S. District Judge Philip Gutierrez agreed.

"Exclusive ownership," Gutierrez reasoned, means "the right to use and possess the recording to the exclusion of others." California's law, unlike the federal law, puts only one limit on this control: The rightsholder may not prevent someone from recording a remake. Since this is the only exception specified, the judge concluded that no other exemptions were intended. He therefore issued a summary judgment for Flo & Eddie on the parts of its suit related to SiriusXM's broadcasts. (Some other aspects of the case are still to be decided.) The ruling did not determine the damages, but SiriusXM may owe millions now not just to Flo & Eddie but to countless other owners of pre-'72 copyrights.

SiriusXM is likely to appeal the ruling. In the meantime, Flo & Eddie have filed similar suits in New York and Florida. Other copyright holders, including the major record labels, have launched lawsuits of their own.

Most media coverage of Gutierrez's decision has stressed the impact it will have on SiriusXM and on Internet services such as Pandora. But the case could conceivably threaten any ordinary AM oldies outlet that operates in California. The decision doesn't explicitly say AM and FM stations have to pay these fees, and you can expect broadcasters' lawyers to claim that this means they're off the hook. But the judge's whole argument is based on the idea that there are no exceptions to the copyright holder's rights save the single item spelled out in the state's statute. That suggests that radio stations—and, for that matter, restaurants and bars that play recorded music—will have to either start paying steep fees to play pre-'72 music or just take the easy road and play something recorded more recently. (I asked Dennis Wharton, a VP at the National Association of Broadcasters, if his group had any comment on the decision. He replied that they were still reviewing it.)

For years, the record industry has been trying to get Congress to make analog broadcasters cough up the extra fees that digital broadcasters have to pay. It may have just gotten what it wanted through the back door, but only for records that are more than 42 years old, and only in California. Watch for some bizarre distortions in the radio marketplace.

NEXT: Conservative Pundit D'Souza, Convicted for Giving Money to Friends For Illegal Motives, To Undergo Court-Ordered "Therapeutic Counseling"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Stop living off old accomplishments. MAKE NEW MUSIC IF YOU WANT TO EARN A LIVING.

    Or tour.

    1. Live Tonight at the Sioux City Shriner’s Hall: Flo & Eddie.

      1. Who wouldn’t slap down cash to see that.

        1. *hand shoots into the air*

  2. If you own a song, you’re entitled to a fee when it is played on the air.

    So, if you own a painting, you’re entitled to a fee when it is viewed in a public place?

    1. Yes, if that is the condition the artist placed in the contract of sale.

      1. “If you own a song”.

        Nope, don’t see anything about a contract.

        1. The radio station bought the record, not YOU.

          It is the radio station’s conduct that is being restricted, not YOURS.

          The copyright holder doesn’t need a contract with YOU.

          1. If the radio station bought the record, then they own that copy of the song.

            I dont send royalties to Thomas Brookside whenever I loan out my books that he wrote.

            1. You would if Thomas Brookside had included such a stipulation in the contract for selling his book to you.

              1. Yep, but he didnt. And Ive never seen that on a album purchase either.

                1. This is why I don’t buy digital music or books. Unless they cost a lot less than a hard copy, I’m getting a lot less value since I can’t legally re-sell or lend it.

                2. Yeah, don’t get me going.

                  If a person’s product is good enough to be able to demand such a stipulation in the contract, I have no problem with it…free market. Not the government’s place to mandate such.

                  1. Not the government’s place to mandate such.

                    The government isn’t mandating anything in this case because the recordings are pre-1972. (The government IS mandating on recordings from 1972-on; which I agree is not their place.)

                    So let’s get this clear: Flo & Eddie are doing the mandating here because the law says they can.

                3. I thought most albums DID have such language on them – that the purchase does not grant broadcast rights

                  1. And the albums given to radio stations are marked NOT FOR RESALE.

                    It’s a conspiracy I tells ya!

            2. If the radio station bought the record

              Most radio stations don’t buy records, the record companies send them *for free*, for promotional purposes! Having done this, now they also want to get paid when it’s played. Nice bait and switch racket!

    2. Strictly speaking, they aren’t collecting the fee from the viewer.

      You can listen to the song on the radio for free.

      They are charging the person who broadcast that song, hoping to make money by doing so.

      1. You can listen to the song on the radio for free.

        Not really for free. The price you pay, if you choose to stick around and listen to several songs, is that you need to turn your radio down during commercials.

  3. This may be a Pyrric victory for Flo & Eddie. If their musice gets no airplay, they will fade away fairly quickly as those that remember their music die off with no new fans.

    1. …”they will fade away fairly quickly”…

      I think you need to change that to the past tense.

      1. Everyone still knows Happy Together, don’t they? I couldn’t name another song by the Turtles, but I love their work with Frank Zappa.

        1. If Frank were alive today, he’d re-record Flo & Eddie’s parts.

  4. How can California have copyright laws more restrictive than federal copyright laws?

    For that matter, how can any state have copyright laws at all, when copyright is a very limited power granted expressly to the federal government?

    1. How can California have copyright laws more restrictive than federal copyright laws?

      Because a strange clause in the federal Copyright Act lets it. IP law is weird.

      1. Try this one, weird trick to get out from under the byzantine provisions of the Copyrught Act

        Click Here

        1. Here are ten great tricks to get money from a copyright! I’m still crying after reading the last one!

  5. What’s that? You want to be paid far more than the value of your product? I have a simple solution for that.

    Another segment, filled with stupidly venal people, prices itself out of a market. It was enough to smother the declining the classical and opera markets, convinced of its cultural worth, but now it spreads to more **cough** popular music.

    1. You notice it’s right around the time that these things are in decline that more restrictions are placed up them.

      Grandma’s dyin’! Quick! Seal up the room and don’t let anyone in!

  6. In more important news, here’s the future of healthcare in Murika:

    Healthcare by disgruntled public union employees

    1. Of course. Why do you think politicians almost always support public sector unions? Because the union doesn’t strike against them, they strike against you. And how much say do you have in their contract?

      That’s power.

      Vote for me, or your trash won’t get picked up, your trains won’t run on time, and when you to the hospital, you’ll have to cross a picket line.

    2. members will stop working through their breaks.

      “Yeah, that’s the ticket!”

      Seriously, Hyperion, Democratcare’s going to get more and more, um, interesting.

    3. It’s getting to where I can’t tell the difference between the US and UK governments.

      The union has published a new report by tax expert Richard Murphy that claimed evasion deprives public finances of ?80 billion a year.

      Collecting a fraction of these “stolen billions” would change the debate about public spending overnight, the union said.

      1. The difference is that they’re on the other side of the pond and so far they’ve outdone us in PC insanity, but we’re working to catch up, USA! USA!

      2. The redeeming feature of the US is that government is less centralized and uniform. We have some state and local governments that are as bad as the UK and some that are almost reasonable. Of course plenty of people want to put an end to it. But it still saves us from going full Euro-tard.

  7. Look on the bright side – at least the Eagles can fade away into obscurity.

    1. They’re already gone.

      1. Somebody’s gonna hurt someone

      2. They stab it with their steely knives but they just can’t kill the beast.


          *glares at TIMEH!*

          1. Give Tim a break, Almanian. He’s the new kid in town.

            1. nice…I didn’t mean to take it to the limit….one more time…

            2. Then he needs,to,stop airing his dirty laundry in public.

              1. people love it when you lose.

    2. That’s the best thing I’m likely to hear all day.

      1. Well, when one is living life in the fast lane like you, Hugh, a genuine desperado, any good news is…good news, amirite?

    3. Obligatory:

      I hate the fucking Eagles, man.

          1. Me too. I hate football.

  8. Imagine me and you,
    I sue.
    I think about my copyright.
    and hold it tight.

  9. So Sirius XM stops playing Turtles records? That ought to be lucrative for Flo & Eddie.

  10. This did make me think, and I cannot recall EVER hearing a Turtles tune on my Sirius. So…IT’S WORKING, Ebb and Flow! Or Eddie Flower…whoever the fuck they are.

  11. (That covers pretty much everything by the Turtles.)

    1972 is a fine line to draw in the sand. David Bowie’s The Man Who Sold the World was released after Ziggy Stardust and the Spiders from Mars in the US market after Ziggy became popular but not in the order the albums were written.

  12. The RIAA should be careful what they wish for.

    I can imagine that AM radio stations that play oldies music who receive an extortion letter to pay exorbitant fees for playing that music could probably change their format to being a Talk radio station in under a week.

    1. Having been in commercial radio before, I concur. Back in 1996, the local AM oldies station (at the station conglomerate I was overnighting for) was a wall of 100 disc changers. I had the job of flipping discs for the “Classic Rock” station and playing the radio announcer’s bits off a tape, and kicking the wall if it stopped working. (Really just a restart procedure on the computer that drove the bank.) I’m sure it’s just a computer full of high-res MP3s, now.

      But my point is, they were so shoestring they didn’t even have a live person working that section of the spectrum. If the RIAA starts trying to extort money out of them, I pretty much guarantee they can’t afford it and will do something else.

      1. “Can you believe those clowns in Congress?”
        “Yes, what, a, bunch, of, clowns!”

  13. 50,000 watts out of Mexico to the rescue.

    1. I feel a hot wind on my shoulder
      And the touch of a world that is older
      I turn the switch and check the number
      I leave it on when in bed I slumber
      I hear the rhythms of the music
      I buy the product and never use it
      I hear the talking of the DJ
      Can’t understand just what does he say?

      I’m on a mexican radio. I’m on a Mexican – whoah – radio

      I dial it in and tune the station
      They talk about the U.S. inflation
      I understand just a little
      No comprende, it’s a riddle

      I’m on a mexican radio. I’m on a Mexican, whoa-Oh, radio
      I’m on a mexican radio. I’m on a Mexican, whoa-Oh, radio

      I wish I was in Tijuana
      Eating barbequed iguana
      I’d take requests on the telephone
      I’m on a wavelength far from home
      I feel a hot wind on my shoulder
      I dial it in from south of the border
      I hear the talking of the DJ
      Can’t understand just what does he say?

      I’m on a mexican radio. I’m on a Mexican, whoa-Oh, radio
      I’m on a mexican radio. I’m on a Mexican, whoa-Oh, radio

      Radio radio… Radio radio… Radio radio…
      I’m on a mexican radio. I’m on a Mexican, whoa-Oh, radio
      I’m on a mexican radio. I’m on a Mexican, whoa-Oh, radio
      Radio radio… What does he say ?

  14. 60s music is almost gone from most terrestrial oldies (or “classic hits”, as some call themselves) stations anyway. As the stations chase the 25-54 demographic, the focus has moved into the 70s and 80s. Flo and Eddie aren’t doing themselves any favors.

  15. For years, the record industry has been trying to get Congress to make analog broadcasters cough up the extra fees that digital broadcasters have to pay.

    And the musicians’ union is pushing this as well. In the interest of “fairness”, of course. That and that Clear Channel is a huge corporation making lots of money. The logic is impeccable.

  16. They seemed so cool when they did that Dirty Duck movie.

    Now they may have destroyed oldies radio forever.

  17. How about we just do away with copyright altogether?

  18. I can’t believe these guys have made a living for nearly 50 years off of ONE damned song. Note that all the songs on the cover of the album pictured were written by someone else.

  19. Everywhere I go people are always comin’ up to me;

    And they say Mark.

    Mark! Mark!

    Mark… are you kidding?

    Lemme tell you this, friends:

    I am not kidding.

Please to post comments

Comments are closed.