Performance Rights in Pre-1972 Sound Recordings Kicked to California Supreme Court

Pandora is appealing a denied bid to escape a class action lawsuit.
Steve Snowden/Getty Images
Mark Volman (left) and Howard Kaylan of The Turtles

On Wednesday, the 9th Circuit Court of Appeal told the California Supreme Court to take up the issue of whether the state protects the public performance of pre-1972 sound recordings.

The development is the latest in a high-stakes showdown that's been unraveling since Flo & Eddie of The Turtles brought class actions against Sirius XM and Pandora for broadcasting hits like "Happy Together." Sound recordings after 1972 fall within the scope of federal copyright law, but there's uncertainty whether broadcasters have to pay to perform recordings made earlier.

In one California case, Flo & Eddie scored a major success in 2014 by convincing a judge that the state did protect public performance. The judge's conclusion was based on a California law enacted in 1982 that didn't specifically limit ownership rights.

Pandora, in its own case, has argued that the California legislature in 1982 did not intend to create protection for sound recordings that had previously entered the public domain.

The 9th Circuit on Wednesday followed the lead of the 2nd Circuit, which in a similar case certified the question of pre-72 performance rights to a New York Supreme Court, which then came to the conclusion that owners of such recordings don't possess exclusive performance rights under New York law. The 11th Circuit has followed the same path over sound recording rights under Florida law.

"We agree with our sister circuits that certification is the best way to proceed on these issues, especially in California," writes a panel at the 9th Circuit. "As an incubator of both musical talent and technological innovation, California has a significant interest in the appropriate resolution of the certified questions. Resolution of these questions will likely affect the state and industries within the state in a variety of ways, and is therefore best left to the California Supreme Court."

Although it is Pandora that's directly fighting here, the outcome will impact others including Sirius XM, which came to a settlement that depends on how appellate courts ultimately rule. Terrestrial radio operators are also facing litigation for performing pre-1972 music.

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