Sirius Business: Deciphering the Legal Grey Area in Sound Recording

By: Emily Wolfford

Subscribers to the popular satellite radio station, Sirius, tune in daily to hear their favorite songs on a variety of stations varying from golden age hip hop, to Neil Diamond Radio, to classic hits like “Happy Together” by the Turtles.[1] Sirius and other fee-based radio stations have long provided this music to consumers under the Federal Copyright Act of 1976 and have particularly benefited from the loophole regarding pre-1972 sound recordings.

In 2014, the Turtles brought suit in the United States District Court for the Central District of California against Sirius XM and their competitor Pandora challenging the lack of protection of sound recordings under the Federal Copyright Act of 1976.[2] The Federal Copyright Act governs the exclusive rights and uses for original works of authorship, but carves out a specific grey area stating that pre-1972 sound recordings are not governed by federal law and are instead left up to the states.[3] Essentially, the law does not protect the rights of artists whose sound recordings were made prior to 1972.[4] Due to this state law grey area, the main question at issue in the case is whether or not California state law grants artists like the Turtles the exclusive rights to their recordings.[5] On September 8, 2016, for the first time in California law, a judge ruled in favor of the plaintiffs on this issue saying that artists like the Turtles do in fact have the exclusive right to publically perform a recording made prior to 1972.[6] The court’s decision on this issue of first impression has a significant effect on copyright claims moving forward, particularly for radio stations like Sirius and Pandora who have benefitted from this right for years.

On November 14, 2016, the day before the Turtle’s record label and Sirius were scheduled for trial to determine damages, Sirius settled for $210 million.[7] This settlement is a big move from the satellite radio company, since it essentially accepted that it could be in debt to thousands of other pre-1972 recording rights owners. On the other hand, Sirius’ competitor, Pandora, has not accepted this outcome as easily and has filed an appeal in an attempt to overturn the court’s ruling. [8]

This settlement sets the tone for cases to be brought in the California courts under the newly established copyright law against other media outlets who have enjoyed the free use of pre-1972 sound recordings, although the outcome of the settlement only applies to pre-1972 recordings that are owned by individuals or small record labels leaving the grey area cloudy for major record labels.[9] While the case is still pending in both Florida and New York courts, the ruling in California will have an influence nationwide on courts trying to decipher the same legal grey area.[10]

[1] Channel Line Up, Sirius XM Satellite Radio

[2] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. CV-13-5693, 2014 WL 4725382, at *7-*8 (C.D. Cal. Sept. 22, 2014).

[3] Id.

[4] Noah Drake, Flo & Eddie, Inc. v. Sirius XM Radio, Inc.: Public Performance Rights for Pre-1972 Sound Recordings, 6 Cal. L. Rev. 61, 61 (2015).

[5] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2014 WL 4725382, at *7.

[6] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. CV-13-5693 (C.D. Cal. Sept. 8, 2016) (civil minutes available at

[7] Bill Donahue, Sirius, Turtles Settle Calif. Pre-1972 Case Ahead of Trial, Law 360 (November 15, 2016, 12:02 PM EST)

[8] Id.

[9] Id.

[10] Id.

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