Mark Volman and Howard Kaylan blended their fine voices for The Turtles and created hit recordings like “Happy Together” in 1967. That was great except federal copyright law did not protect sound recording rights until 1972. Even after federal law changed in 1995 and 1998 to require royalty payments to performers for recordings played by digital radio services like SiriusXM and Pandora, Volman and Kaylan and countless others got nothing because sound recordings made before 1972 do not exist as far as the Copyright Act is concerned.
I met them on the road with Frank Zappa when they were The Phlorescent Leech and Eddie because old contracts stopped them from calling themselves by their own names or The Turtles. In one of Frank’s most prolific periods, they did lead vocals on tours, were in his pioneering movie “200 Motels”— the first feature film shot on videotape and transferred to 35 mm— and sang on great albums like Chunga’s Revenge and Just Another Band from L.A. I was privileged to be at unforgettable concerts like Fillmore East just days before it closed in June 1971.
Then Frank was knocked into the Royal Albert Hall orchestra pit by a fan who rushed onstage, and before long Flo & Eddie were out finding new gigs. They are smart guys and they kept their careers going ever since, the hardest accomplishment in music. So it wasn’t surprising to see them appear as class action avengers of unpaid golden oldies artists in a California federal court lawsuit titled Flo & Eddie, Inc. v Sirius XM Radio. The suit was described as claiming royalties for performing as artists on sound recordings made before 1972 but not recognized by federal copyright law.
How could they do that? They had California Civil code §980(a)(2) which protects sound recordings made before February 15, 1972—one of a handful of state laws that rushed into the vacuum left by federal copyright law. The California law doesn’t mention digital radio or performance royalties for artists, but last month Judge Gutierrez ruled in their favor. Central District of CA, Case 2:13-cv-05693-PSG-RZ Document 117 Filed 09/22/14.
They did not really claim federal style digital performance royalties. Their main argument was more basic, that the California copyright law gives them the power to prevent SiriusXM from performing or reproducing their recordings without their permission as the “exclusive owners” of the rights to do that. So the point was that they could stop Sirius from playing their songs, and the court agreed. IP rights are the power to exclude other people from using your creations and inventions.
The lawsuit had simple facts, and Flo & Eddie won summary judgment because none were disputed. SiriusXM has channels devoted to pre-1972 recordings, regularly plays 15 Flo & Eddie songs, did not get permission from Flo & Eddie, and doesn’t pay them.
The decision is a big deal in the music business and Sirius is asking the 9th Circuit Court of Appeals to reverse it. If it does not, they will likely ask the Supreme Court to reverse Judge Gutierrez. Meanwhile, Flo & Eddie are fighting the same fight in other states with similar laws, and they’ve sued Pandora in the same California court.
Whatever the outcome, if Frank Zappa was with us he might be surprised that Flo & Eddie would emerge as the artists to stand up and represent a class of their peers in this battle. I think he’d be proud of them too.