The popular music app company Pandora Media Inc. has opened quite a musical box. It has been in litigation over what are known and loved as the “oldies.” Various record labels such as Capitol Records and Sony Music sued Pandora in New York on April 17, 2014 for common law copyright infringement over Pandora’s streaming of songs recorded prior to February 15, 1972.
Pandora recently settled the suit for $90 Million. Some of the pre-1972 recordings at issue included songs by the likes of Aretha Franklin, the Beatles, Elvis Presley, Hank Williams, and Johnny Cash, to name just a few. Pandora’s settlement follows a similar settlement reached by Sirius XM on almost identical grounds in California. In that case, the record labels asserted California statutory law, which specifically grants copyright protection to pre-1972 sound recordings, as well as common law misappropriation, conversion and unfair competition. Sirius XM paid the labels $210 Million for its use of the oldies.
The legal issues raised in these cases are complex. Because the pre-1972 songs are not covered by federal copyright law, royalties are not set by the Copyright Royalty Board. Thus, without a unifying federal law that seeks to harmonize the rights of interested parties, content owners and companies like Pandora and Sirius XM are left with a patchwork of different state laws that can make for a long and winding road to resolution. And that’s when the heartache begins.
This issue was recognized a few years ago when Congress asked for HELP! and requested the U.S. Copyright Office examine whether it made sense to extend copyright protection to these recordings. The Copyright Office issued adetailed report and recommendation to bring these recordings into the federal copyright fold. To date, we have heard the sound of silence from Congress.
Given the recent settlements and issues surrounding the rights of pre-1972 sound recordings, it seems like Congress should dust off the 2011 report and have the Copyright Office “Play it again, Sam.”