Lawsuit Targeting Google And Apple Could Disappear Pre-1972 Music From The Web

There’s a pending class-action lawsuit that exploits a strange federal copyright loophole to target Google, Apple, Sony and others. As reported late last week by The Hollywood Reporter, at stake in this case is the digital availability of popular music recorded before 1972. That includes all the big-name ’60s bands which are a staple of today’s current rotation.

The plaintiff is Zenbu Magazines, which claims to own catalogs of bands such as Hot Tuna, New Riders of the Purple Sage and others. The main assertion is that “pre-1972 recordings” from these bands have been played or transmitted without permission or royalties payments. The litigation, which has yet to be certified as a class action, seeks unspecified millions of dollars in damages.

This issue has already arisen in a 2013 case involving the group The Turtles (“Happy Together”) and SiriusXM radio. Turtles founding members won that case (at the trial court level) but the application of the ruling outside California is uncertain. The case was based on California copyright law and held that SiriusXM violated the plaintiffs’ rights when it failed to license their songs or pay royalties.

The legal issues here are pretty convoluted and difficult to quickly explain. As I understand it, federal copyright law governs recordings made after February 15, 1972. Prior to 1972 the laws of various states may apply. California law was applied in The Turtles’ case. But New York and other states have copyright or quasi-copyright rules that may equally apply.

The procedure for playing or distributing music after 1972 is settled. The rules governing traditional radio and digital or streaming services (Pandora, iTunes) are somewhat different in terms of royalties but the rules are clear.

Most radio stations and music services have been playing pre-1972 music without incident until now. Here’s how THR summarizes the state of the law:

The legal opening happened because when Congress amended the copyright laws in the 1970s to cover sound recordings, it protected only those authored after Feb. 15, 1972, under federal law. Since then, a wide variety of music users — including TV broadcasters, terrestrial radio and bars and restaurants throughout the nation — have performed pre-’72 sound recordings without much legal trouble. As for digital radio, most operators assumed they were covered by compulsory fees established by the Digital Performance Right in Sound Recordings Act of 1995 and collected through SoundExchange, even if the money wasn’t flowing to the owners of pre-’72 music.

Congress is being urged now to incorporate pre-1972 music into federal copyright law. Given the history and inertia of Congress, however, it’s unlikely that any new law will emerge any time soon.

Until that happens, everything can be settled with the appropriate permissions and royalty payments but the claimed damages in the pending lawsuits run into the hundreds of millions of dollars. And any settlements or adverse decisions against defendants will encourage more litigation.

Defendants are thus likely to resist paying and litigate. Plaintiffs lawyers, seeing a potentially massive payday for old music, will continue to sue until some clear rules are established for the pre-1972 catalogs.

Though it’s unlikely, until these issues are clarified and resolved, we could see the short-term disappearance of much of pre-1972 popular music from the internet and mobile streaming services.