Legal Setback for The Turtles on Copyright Suit

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The Turtles

Update (Feb. 19): Not such good news for The Turtles after all. Although the group seemed to be winning its class action suit against SiriusXM (see original article below), the radio giant is now ahead in the ongoing battle. According to a decision issued last week by the 2nd U.S. Circuit Court of Appeals in New York, the Turtles and other oldies artists cannot collect royalties on the recordings of their works made prior to 1972, which, in the case of the band (which had broken up by then), is their entire catalog.

According to an article published by Digital Music News, “Specifically, the challenge was brought by Sirius XM Holdings Inc., a company seeking to avoid hundreds of millions in royalties to oldie artists. Earlier, the band prevailed on the national stage, though Sirius fought based on a patchwork of contradictory state laws on pre-1972 recordings. Just ahead of Christmas, Sirius secured a victory in New York’s Court of Appeals that overturned the earlier decision. The similarly named 2nd U.S. Circuit Court has now accepted that ruling. Back in 2014, U.S. District judge Colleen McMahon ruled that Sirius and other companies had to pay for the older recordings. But like many court battles, that was just the start of a long-term war. As part of the class action, Sirius was on the hook for nearly $100 million in royalties. But this is likely a done deal, at least on the judicial front.”

According to the article, the only remaining option for the Turtles and other artists who recorded prior to 1972 is to get Congress to change the copyright laws, a very iffy proposition given the current climate in the House of Representatives.

Here is our original article from last November…
SiriusXM, the satellite radio giant, has settled a class action lawsuit brought by two original members of the 1960s group The Turtles three years ago. Musicians Mark Volman and Howard Kaylan, also known as Flo and Eddie, filed against SiriusXM on behalf of recording acts who, they believed, were not being compensated for airplay of their music.

In the settlement, the radio company agreed to pay up to $99 million over music copyrights on recordings made before 1972, the New York Times reported. Due to an obscure provision of U.S. copyright law, SiriusXM had only been paying royalties on recordings made after 1972. The Turtles—best known for their hits “Happy Together,” “Elenore,” “She’d Rather Be With Me,” “You Showed Me” and “It Ain’t Me, Babe”—filed three lawsuits against SiriusXM for playing their songs without permission, claiming protection under state copyright laws in California, Florida and New York.

The class action suits were filed by Flo & Eddie, Inc., a company run by Volman and Kaylan, who still perform the group’s hits under the name the Turtles. According to the Times, lawyers for plaintiffs in the case filed papers on Nov. 28 in a federal court in California revealing the proposed settlement terms, which must be approved by the court.

The Times wrote, “The deal calls for SiriusXM to make two types of payments to the plaintiffs, which include many independent artists and record companies. For its past unlicensed use of pre-1972 recordings, the satellite radio company agreed to pay a minimum of $25 million, with up to $15 million in additional payments depending on whether the Turtles prevail in appeals that are pending in the New York and Florida cases. In addition, SiriusXM agreed to a 10-year license for recordings by class members, paying a 5.5 percent royalty rate. According to the filing, that amount could be worth between $45 million and $59 million, depending on projections of SiriusXM’s revenue growth over the next decade.”

The payments, the report further claimed, “would apply to the owners of any recordings from before 1972 that have been played by the satellite radio service without permission.” The settlement excludes does recordings owned by the major labels, which settled their own suit against SiriusXM last year for $210 million.

Finally, said the report, “The settlement still leaves unresolved the underlying legal question of whether state laws allow the owners of older songs to control performing rights for those recordings.” The Turtles are also pursuing a similar case against online radio company Pandora.

Watch the Turtles perform “Happy Together”