Suing to the Oldies

by Wendel, Rosen, Black & Dean LLP
Contact

I’m listening to my Classic Rock station on Pandora, and Keith Richards’ timeless guitar licks begin to blast from my laptop speakers.  I instinctively pick up my air guitar and start to wail.  Mick comes in:  “I. Can’t. Get. No. . .”  Then . . .  nothing.  I snap out of my rock star fantasy and wildly click over to Pandora to figure out what happened.  Over the picture of the Stones’ Out of Our Heads album cover, there is a message from Pandora: “This track is no longer available on Pandora.  We apologize for the inconvenience.”

Pandora

Ok, the Stones didn’t really disappear.  Not yet.  In actuality, Mick went right on singing, Keith went right on riffing, and I went right on wailing on the air guitar.  Nonetheless, the following two facts are absolutely true:  1) you don’t care about the rest of my jam session—which was complete with kicked-over “mic stands” (coat racks) and a T-shirt thrown into the “crowd” (my mortified wife and children)—and 2) fans of the Stones, Beatles, Elvis, Miles, Coltrane, and many other musicians with pre-1972 recordings could soon see these recordings removed from Pandora—and other commonly-used media—if record companies prevail in a recent suit filed against the Oakland-based company.

The Pandora Suit and SoundExchange

The suit against Pandora, which the record companies filed in New York state court, involves a challenge encountered in integrating the music industry’s royalty system:  millions of people listening to music using media that did not exist even 15 to 20 years ago, let alone in 1972.  Yet, when copyrighted songs are played on Pandora, satellite radio, or streaming webcasts, the holders of the copyrights are still entitled to royalties.  Many companies using digital recordings, including Pandora and SirusXM, use a company called SoundExchange to track usage, collect digital royalties, and distribute them to copyright holders.  Problem solved, right?  Unfortunately, there’s a catch.  SoundExchange may not track usage of material recorded or “fixed” before 1972, meaning that it would not collect or distribute royalties on such recordings.

The Problem With Pre-1972 Recordings

On February 15, 1972, Congress brought sound recordings under federal copyright law.  Prior to 1972, however, musical recordings were protected only by state copyright laws, many of which are based in common law, court-made rules that are not codified in statutes and, at least in many instances, do not require registration in order to protect recorded material.  The suit against Pandora is based on New York common law.  Works that are copyright protected by state common law are harder to track than those protected by a registered federal copyright.

The record companies in the Pandora suit, as well as in a California suit against SirusXM, contend that they have not been paid for usage of their pre-1972 recordings.  Pandora appears to tacitly acknowledge as much.  According to the complaint, Pandora told the SEC that if it were required to obtain licenses for the reproduction and public performance of pre-1972 sound recordings, the expense of compliance may be so prohibitive that Pandora would simply remove all pre-1972 recordings from its service.

We will watch the Pandora and SiriusXM cases with great interest, as the cases could end up significantly diminishing both services, as well as my living room concert series.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wendel, Rosen, Black & Dean LLP | Attorney Advertising

Written by:

Wendel, Rosen, Black & Dean LLP
Contact
more
less

Wendel, Rosen, Black & Dean LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.