Sound Recordings

May 31, 2016
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[Eric’s intro: in Tyler’s cover email to me, he told me the ruling was “huge, as in 1906-San-Francisco-earthquake huge. It literally could result in undoing 75 years of copyright history.”]

A federal court in California has held that a California statute, Civil Code §980(a)(2), protects sound recordings fixed before February 15, 1972 against unauthorized public performance. The ruling is a victory for Flo & Eddie, Inc., a corporation that owns the rights to sound recordings made in the 1960s by the musical group The Turtles, including the hit song “Happy Together”; and a defeat for Sirius XM Radio, which tried to convince the court that California law only prohibited unauthorized reproduction and sale, and did not extend to public performances. More generally, it is huge victory for sound recording copyright owners and a big defeat for broadcasters, one that threatens to undo a 75-year-old consensus that state law does not provide a public performance right for sound recordings.

Background

In order to fully understand the importance of the ruling, it is necessary to first understand some background principles of U.S. copyright law. (Those already intimately familiar with U.S. copyright law may skip ahead.)

First, U.S. copyright law distinguishes between a musical work (the notes and words, in whatever form they occur) and a sound recording (a fixation of sounds, usually a particular recorded performance of a musical work). The copyright in a musical work is owned initially by the composer and the lyricist (as a work of joint authorship), and is usually assigned to a music publisher. The copyright in a sound recording is owned in theory by the performer(s) and the sound engineer(s), but in practice it is usually owned by the producer or record label under a work-made-for-hire agreement. A sound recording is treated as a “derivative work” of a preexisting musical work. Thus, there are two different copyrights, and two different owners, both fixed in one master tape (a “phonorecord” within the meaning of federal law).

Second, while musical works have been eligible for federal statutory copyright since 1831, sound recordings were not added to the federal copyright act until February 15, 1972. Before that, under the 1909 Copyright Act (which governs works published or registered before January 1, 1978), the owner of copyright in a musical work had the exclusive right to make so-called “mechanical reproductions” of the musical work, such as phonograph records; but the recordings themselves were not eligible for federal statutory copyright. That meant that if there was an unauthorized reproduction or broadcast of such a recording, the musical work copyright owner could sue (if the work was still protected by federal copyright law), but the owner of the master recording (the producer or record label) could not recover damages under federal copyright law for such a use.

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