New Voices Cover Flo & Eddie’s State Copyright Song

Hit songs produce cover versions by different artists who perform the original in their own style. Sometimes the cover version eclipses the original and becomes the standard everyone remembers. It’s too soon to know how big a hit Flo & Eddie will achieve in their three state copyright litigation I’ve been writing about, but cover versions have begun.

Last Thursday in California federal court, Zenbue Magazines filed seven lawsuits against the likes of Beats Electronics, Sony Entertainment, and Google seeking sound recording performance royalties on the same theories Flo & Eddie have used successfully so far against Pandora and SiriusXM.

They argue that state copyright law fills the vacuum left by the federal copyright law which gives no legal protection to sound recordings made before 1972, and the state law requires internet radio to pay royalties for every pre-1972 sound recording they stream.

Zenbue alleges it owns sound recordings by The Flying Burrito Brothers, Hot Tuna, and New Riders of the Purple Sage played by the defendants’ internet radio services. News coverage has emphasized the big companies named in these apparent cover version lawsuits. What may be more important is who is performing the cover version, and what that tells us about where things are heading.

The attorneys in the Flo & Eddie lawsuits are primarily well-known entertainment litigators. The lead lawyer in the seven lawsuits is described as a class action attorney who has a law firm primarily engaged in consumer protection. This difference may be important.

Reactions to the news of the lawsuits has been peppered with predictions of doom in the form of oldies being kicked out of the internet radio world. If we know anything about what the outcome will be, it is safe to say it will be data driven someday in the future when most parties make a deal. That is how almost all intellectual property litigation ends.

Meanwhile, a class action and consumer protection group filing state copyright law infringement lawsuits involving music against some of the largest corporations in the world may or may not mean anything. But it is at least a bet that Flo & Eddie’s victories in California will hold up on appeal.

Competing class actions sometimes are consolidated into one big lawsuit. Lawyers in the various cases then compete to see who will have a place at the bargaining table if and when settlement talks begin.

We may have seen just the beginning of such a process. More cover versions are likely coming.

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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