Copyright protection for public performances of pre-1972 music

A decision of the 9th U.S. Circuit Court of Appeals has renewed focus on copyright protection for public performances of pre-1972 sound recordings. The issue before the court was whether California copyright law protected rights to public performances of music created before 1972.

Prior to the Copyright Act of 1976, copyright protection was a patchwork of state and federal laws. The 1976 law substantially moved copyright to the federal domain with a preemption clause for "equivalent" state copyright protections, which applied to works within subject matters of federal laws that were fixed in a retrievable format.

Glaringly, the 1976 act did not provide -- and in fact, explicitly rejected -- rights in public performances of sound recordings, regardless of their creation date, stating: "The exclusive rights of the owner of copyright in a sound recording ... do not include any right of performance." The 1976 act thus allowed states to continue to provide copyright protection so long as the protection is not addressed by the federal copyright law -- for example, for works not fixed in a tangible medium of expression, and until the Music Modernization Act went into effect last year, rights in pre-1972 music.

California law has long provided copyright protection for original works, with the first such law passed in 1872. After the 1976 act took effect in 1978, with its preemption provision, California copyright law continued to provide coverage that was complementary to the federal statute for, e.g., works that are not stored in a retrievable media.

In 1982, California amended its copyright law to address the preemptive clause of the 1976 act but maintained the "exclusive ownership" language used in the original statute for pre-1972 works. In particular, under California Civil Code Section 980(a)(2): "The author of an original work of authorship consisting of a sound recording fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047."

In 2014, Flo & Eddie, Inc., a company created by the founders of the '60s popular music group The Turtles, brought suit in federal district court in California against satellite radio provider SiriusXM, seeking compensation under California copyright law for Sirius' unauthorized play of the band's pre-1972 songs. The lawsuit alleged that Civil Code Section 980, which gave Flo & Eddie the "exclusive ownership" of its pre-1972 songs, also included the right of public performance.

The federal district court agreed and granted summary judgment in favor of Flo & Eddie, concluding that "[t]he plain meaning of having 'exclusive ownership' in a sound recording is having the right to use and possess the recording to the exclusion of others." The decision pointed out that there is "nothing in that phrase to suggest that the legislature intended to exclude any right or use of the sound recording from the concept of 'exclusive ownership.'"

Sirius appealed the district court decision and last August the 9th Circuit reversed the district court's decision. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 9 F.4th 1167 (9th Cir. 2021). In interpreting the scope and coverage of California's copyright law, the 9th Circuit panel found the historical meaning of the term "exclusive ownership" differs from the modern dictionary's definitions of those the term. In particular, the court noted that, as of 1872, no courts had recognized copyright protection in public performance of musical works. Accordingly, the panel noted that when California first enacted its copyright statute in 1872, the term "exclusive ownership" almost certainly did not include a right of public performance. Rather, "exclusive ownership" referred, and still refers, to the owner's common-law copyright in an unpublished work to reproduce and sell copies of that work.

The 9th Circuit decision is considered a big victory for digital and satellite radio services because it saved them tens of millions of dollars in back royalty payments for playing pre-1972 musical works. In addition, the ruling brought sighs of relief from broadcast radio owners because, under federal law, broadcast radio is not required to pay performance fees for any music played on over-the-air radio regardless of when it was recorded. In that regard, the 9th Circuit panel noted that "While Flo & Eddie reaps royalties from the Turtles' songs being played on the big screen and television, it does not receive performance royalties for airplay on AM/FM radio. Sound recording owners have no right to receive royalty for AM/FM airplay under federal law."

Had Flo & Eddie won this case for compensation under California copyright laws, then they could have taken their royalty request to the National Association of Broadcasters and demanded royalty payments from AM/FM radio stations.

A relevant issue is the duration of protection for pre-1972 copyrighted works. As noted above, U.S. copyright law was updated with the enactment of the Music Modernization Act, which went into effect on January 1, 2021. The act extends remedies for copyright infringement to owners of pre-1972 sound recordings for 95 years after the year of first publication of the recording, subject to certain additional periods based on when the sound recording was first published.

For recordings first published before 1923, the additional time period ended on December 31, 2021. Thus, all such pre-1923 works are now in the public domain. For recordings first published between 1923 and 1946, the additional time period is five years after the general 95-year term. For recordings first published between 1947 and 1956, the additional time period is 15 years after the general 95-year term. For all remaining recordings first fixed prior to February 15, 1972, the additional transition period will expire on February 15, 2067. 