Flo & Eddie Getting Closer to Pre-1972 Sound Recordings Payday

The holidays have a pre-1972 soundtrack. If you shopped in stores in America, you heard it. Possibly the largest selling single in the history of recorded music, Bing Crosby’s “White Christmas” was recorded in 1942. Bobby Helms’ “Jingle Bell Rock” in 1957, and Johnny Mathis’ version of “The Christmas Song” in 1958. And none of the recordings were protected by federal copyright law. The musical notes and lyrics were subject to copyright, but not the recordings that made them holiday icons.

Flo & Eddie own all the recordings of their hits with the Turtles. They have been on a litigation tear I wrote about in October and November. Their goal is to get royalties for the plays of their recordings under California, New York, and Florida state law. The basic argument in each state is that its law steps in and fills the gap in federal copyright protection.

So far they won key rulings against Sirius XM Radio in California and New York federal court. And right before New Year’s they filed a brief asking the New York court to not permit Sirius to scramble with defenses not developed before it sought summary judgment, and lost.

Flo & Eddie are asking the court to let them go straight to damages discovery and class action certification. The lawsuit is asking to represent virtually all pre-1972 sound recording owners, and if they get the class certified the money involved will be large. Not billions, but tens of millions of dollars are expected by many.

Flo & Eddie may be trying to ride the momentum gained when Sirius switched lawyers after the summary judgment loss, and the new lawyers told the New York court they had important old caselaw that hadn’t been considered up to that point. The argument was harshly rejected on December 12 by Judge McMahon after considering the “new” decision promptly after Sirius filed their motion containing it.

Meanwhile, Flo & Eddie also sued Pandora in California and last month it filed an Anti-SLAPP motion to stop the litigation as an attempt to suppress Pandora’s First Amendment rights. This is a well written motion by top lawyers, but it reminds me of all the years clients have said “This is America!” and I should not have to get a license from ASCAP or BMI just because I play music at the restaurant or bar. The First Amendment has rarely if ever trumped recognized federal copyrights enforced against commercial users of music. If it did, there would be no copyright law.

Sirius is appealing the decision against them in California and may fight every step on the New York litigation in Judge McMahon’s court and the appeals courts there too if needed. Unless deals are made sooner, final results may take years. Yet all the big decisions so far suggest the courts are recognizing an underlying sense of fairness at stake. To paraphrase another Mathis version you may have heard recently, it’s beginning to look a lot like payday for Flo & Eddie and their fellow pre-1972 sound recording owners.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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1 Response to Flo & Eddie Getting Closer to Pre-1972 Sound Recordings Payday

  1. bkeating51 says:

    In Judge McMahon’s opinion in which she was so harsh to Sirius’ new attorneys O’Melveny & Myers for presenting the 1940 RCA decision as relevant to this case, she was not entirely hostile to Sirius. Sirius had asked for the alternate relief of certifying an interlocutory appeal to the Second Circuit Court of Appeals. She seems to disagree with Judge Gutierrez on this question:

    “Sirius raises excellent arguments in favor of certification. However, I am going to defer
    ruling on this motion until I first address the outstanding order to show cause why summary
    judgment of liability should not be entered in favor of Flo and Eddie. The case for interlocutory
    certification is much stronger if the issue of liability is settled.”

    This would be very significant. The federal appeals courts rarely devotes much attention to the trial judge’s interpretation of the law; preferring to keep that privilege to itself.


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