SiriusXM: “It Ain’t Me Babe”

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Mark Volman and Howard Kaylan, the principal songwriters and vocalists of 60’s pop group The Turtles, filed a class-action lawsuit in federal court in the Southern District of New York, against SiriusXM Radio, Inc., the satellite radio giant, captioned Flo & Eddie Inc., et al. v. SiriusXM Radio, Inc.; and Does 1 through 10, No. 13 CIV 5784, in mid-August. Perhaps signaling the urgency and seriousness of the situation, this past week attorneys from the New York-based law firms Weil, Gotschal and Manges LLP and Kramer Levin Naftalis & Frankel LLP filed Notices of Appearance on behalf of SiriusXM. We’ll discuss the case in a second. First, a little background.

In 2011, the U.S. Copyright office issued a report on the copyrightability of pre-1972 sound recordings. According to the report, “protection of pre-1972 sound recordings remains governed by a patchwork of state statutory and common law,” and while the report recommended that these recordings be placed under federal protection, it was tacit acknowledgment that no federal protection existed for pre-1972 otherwise-copyrightable works. This is not to say that there was no protection that existed for the artists before 1972. The Insider notes that, besides state and common law protection, these iconic artists surely padded their finances through many other avenues, including continued recording and touring, and licensing of their respective publishing rights to their compositions. But there was no federal copyright protection for sound recordings before 1972.

Think about that. The Beatles had finished their entire recording career by 1970. The Doors were through too, at least as we knew them, having disbanded in the aftermath of Jim Morrison’s untimely death the same year. Frank Sinatra and Ella Fitzgerald had finished recording long before 1972, and every key recording Elvis Presley ever made was produced before he flew down to Hawaii in 1972 to film his famous comeback special Aloha in Hawaii , which premiered in January of 1973. These iconic bands and artists have fueled the classic rock and oldies radio scene since the very inception of the format on radio, first on terrestrial and now on satellite radio. But what about the less-celebrated acts of the 1960s that we hear on those same stations? The Turtles are, of course, a very good example. The group, founded by Volman and Kaylan, began their recording career in 1965 with a string of hits, including a cover of Bob Dylan’s “It Ain’t Me Babe” and the iconic “Happy Together,” the sole No. 1 record for the band and its label, White Whale Records. But the Turtles were done before the dawn of the ’70s.  And unlike those other artists we mentioned, this lack of federal protection has, apparently resulted in a bleak financial reality for the surviving members.

Volman and Kaylan were likely incensed by hearing their songs on SiriusXM, but never seeing any royalties for the spins they were receiving. Clearly believing they were protected under some law, they brought their lawsuit under the common law copyright and unfair competition statutes here in New York. In the complaint, Volman and Kaymlan allege that, because of their ownership of their pre-1972 catalog and the Turtles’ recordings, SiriusXM’s actions — refusal to license the music directly from the artists and get authorization to play these recordings, playing it on their stations anyway, allowing streaming downloads of select channels, and allowing subscribers to pause, rewind, and replay the sound recordings in question — constitutes “wholesale infringement and misappropriation” of each of the recordings in question.

Oh, and they’re seeking $100,000,000 in damages.  Wait, what? Why on earth do they believe that this case is worth $100,000,000? Apparently believing that there are many other bands like the Turtles out there who are similarly situated (i.e. have been deprived of licensing fees for their pre-1972 recordings), Volman and Kaylan made their lawsuit of the class action variety. They may not be wrong.  Indeed, the Plaintiffs do not even pretend to know how many members of this type of class there may be. They believe that the “pre-1972 [r]ecordings infringed and misappropriated in New York by” SiriusXM number in the millions and are “owner by many thousands” of potential class members.

This is, of course, an unprecedented action. There is certainly an argument to be made, however, that the plaintiffs have waived their possible claims for infringement even under the common law, because of their failure to sue terrestrial radio for their playing of the pre-1972 recordings for the last 41 years, or Sirius and XM, which began broadcasting (separately) in 2002 and 2001, respectively. The statute of limitations for a copyright infringement claim under the U.S. Copyright Act is three years from the discovery of the infringement, or when it should have been discovered. That does not apply here because the claims are not made under the federal law, but even taking New York’s copyright infringement statute of limitations into account, while “[a] performer has a property right in his performance that it shall not be used for a purpose not intended,” (Gieseking v Urania Records, 17 Misc. 2d 1034, 1035 (Sup. Ct. N.Y. Cty. 1956)), the only judicially recognized relief in New York for the violation of such right are the protections afforded against the commercial misappropriation of a person’s name, picture, or voice that are provided by Civil Rights Law §§ 50 and 51 (Hampton v Guare, 195 A.D.2d 366, 367 (N.Y. App. Div. 1st Dep’t 1993), lv den. 82 N.Y.2d 659 (N.Y. 1993); Stephano v News Group Publs., 64 N.Y.2d 174, 183 (N.Y. 1984)).

The Turtles have alleged no facts from which to infer that the recording containing the unauthorized use of their songs was issued within the one-year statute of limitations period applicable to such claims. Nussenzweig v diCorcia, 9 N.Y.3d 184 (N.Y. 2007). Therefore, their state copyright infringement claim should also likely fail as time-barred. Goeke v Naxos of Am., Inc., 2012 N.Y. Misc. LEXIS 343, at *9-10 (Sup. Ct. N.Y. Cty. 2012).

Only time will tell whether Volman and Kaylan will get their White Whale. From the looks of it though, we won’t have to wait 41 years to find out whether these parties will ever be “Happy Together” again.


SOURCE:  ECF Docket, Southern District of New York, Flo & Eddie Inc., et al. v. SiriusXM Radio, Inc.; and Does 1 through 10, No. 13 CIV 5784.


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