The Flying Burrito Brothers ()
SAN FRANCISCO — Sirius XM Radio’s recent clubbing in litigation over the rights to pre-1972 sound recordings has unleashed a series of suits against Google, Apple, Sony and music streaming service Rdio.
According to complaints filed Thursday in U.S. District Court for the Northern District of California, streaming music services such as Google Play Music and Apple’s iTunes Radio have been profiting from pre-1972 recordings without paying royalties or licensing fees to the owners of the underlying sound recordings.
The four proposed class actions were filed by Zenbu Magazines Inc., the owner of the copyright to sound recordings including “Sin City,” a song by The Flying Burrito Brothers. The song had more than 330,000 plays on Spotify as of Thursday afternoon and the album it’s on, “The Gilded Palace of Sin,” had more than 28,500 plays on Rdio.
Although musical compositions have been protected under U.S. copyright law since 1831, sound recordings were only added to the federal copyright act in 1972. That’s meant that the holders of copyrights to pre-1972 compositions—largely music publishers—have been paid royalties for public performances while those holding the copyrights to recordings—largely record labels—have not.
Last year, however, a federal judge in Los Angeles found that under California state law, the rights of owners of pre-1972 recordings extend to public performances. U.S. District Judge Philip Gutierrez of the Central District of California sided with the owners of sound recordings made by The Turtles during the 1960s in their lawsuit against Sirius XM Radio.
Santa Clara law professor Tyler Ochoa, who wrote about Gutierrez’s decision shortly after it was released, called it “San-Francisco-earthquake huge” in the copyright world. In a phone interview, Ochoa said the lawsuits filed against streaming services in the Northern District are the “inevitable” fallout of the earlier decision.
Zenbu Magazines is represented by The Law Office of Jack Fitzgerald in San Diego. The suits seek to certify a class of all owners of recordings made before February 15, 1972, whose recordings appear on streaming services.
“The streaming services don’t have a good idea of what their total liability is going to be,” Ochoa said. He said the suits could result in the streaming services pulling pre-1972 recordings from their collections to avoid further liability. He also said he expects to see record labels file their own lawsuits to avoid losing control of any class action, or leveraging the possibility of a lawsuit to get better royalty rates for their entire catalogues.
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