Turtles probe the murky soup of pre-1972 US copyright law

The Turtles

The Turtles are leading a $100 million lawsuit against SiriusXM, arguing that the satellite broadcasting company has infringed on millions of older recordings from thousands of artists, and that Sirius cannot rely on section 114 of the US Copyright Act for protection – as pre 1972 recordings are subject to state law – which may arguably mean that Sirius plays songs recorded before that date without permission. The suit, brought under the California Civil Code, and led by vocalists Howard Kaylan and Mark Volman (later known as Flo and Eddie whose company leads the action and owns copyrights in a number of Turtle's sound recordings) was filed on August 1 in the Los Angeles Superior Court and is proposed as a class action. 

Are the Turtles' "Let Me Be" (1966), "You Baby" (1966), "Happy Together" (Billboard Hot 100 Number 1 in 1967), "Elenore" and "You Showed Me" (both peaking at No. 6 in 1969) and their well-known 1965 cover of Bob Dylan's "It Ain't Me Babe" protected against unauthorised plays by Californian state law (Californian Civil Code S980(a)(2)?  Sirius does currently pay compensation for the use of sound recordings (unlike terrestrial stations in the USA) at a rate set by the Copyright Royalty Board and the non-profit SoundExchange collects and distributes these royalties. Whether they collect for heritage acts is another matter – it seems Sirius did not, until recently, log or report all plays and does not report tracks played from before 1972 (meaning the recording artists and indeed their labels seemingly don’t get paid!).

Interestingly  in April this year in the 'Grooveshark' litigation, a New York state appeals court ruled that the safe harbour provisions of the Digital Millennium Copyright did not extend to per-1972 recordings as this was when Congress first recognized a federal copyright for sound recordings – although as Iona pointed out in her blog at the time, this flies in the face of previous decisions: last year, the Manhattan Supreme Court relied on the 2011 federal ruling in Capitol Records v. MP3tunes, to find "no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post-1972 recordings." In 1972, in Goldstein v. California, the U.S. Supreme Court held that "Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, the California statute may be enforced against acts of [copyright] piracy such as those which occurred in the present case."

Spin reports that The Turtles have a history of taking disputes to court. The band sued their own label in 1971, citing accounting irregularities, and ended up earning the rights to their songs' original masters. Many years later, they filed suit against De La Soul for damages of $1.7 million over a 1989 sample of  the Turtle's 1969 hit "You Showed Me." That case was settled out of court.