Apple's Beats Music, others hit by lawsuit for allegedly misappropriating pre-1972 music

Posted:
in iPod + iTunes + AppleTV edited January 2015
Streaming music services like Apple's Beats Music, Google Play, Rdio and others are targets of a new volley of lawsuits claiming unpaid royalties on certain pre-1972 songs, potentially ending access to these older tracks.



The suit being leveled in California District Court by Zenbu Magazines, Inc., current owners of multiple tracks recorded prior to 1972, claims Apple's Beats Music and other streaming services misappropriated its content and illegally profited by selling subscription services without paying out royalties.

Along with Beats, Zenbu has filed identical suits against Sony, Google, Grooveshark, Rdio, Songz and Slacker citing the same issues, seeking class certification in each case. The suits were filed on Thursday and later reported by GigaOm.

According to plaintiffs' lead attorney Jack Fitzgerald, the streaming services copied and uploaded to their servers "tens of thousands" of songs recorded prior to Feb. 15, 1972 -- the cutoff date for sound recordings to be afforded copyright protection under federal law -- for distribution to paying customers. In Beats' case, the 1969 song "Sin City" by The Flying Burrito Brothers was cited as an example.

It is unclear if Zenbu's catalog is popular with on-demand customers and the papers do not detail potential licensing estimates, but if Apple and others determine the cost of keeping the content online does not warrant royalties, the songs may be taken out of rotation altogether. Such a decision could have repercussions on other pre-1972 songs, as seen in separate cases successfully leveraged against digital radio station SiriusXM.

«1

Comments

  • Reply 1 of 26

    Seeing as streaming services pay musicians approximately 1 cent for every million plays, I see this as a storm in a teacup.

  • Reply 2 of 26
    philboogiephilboogie Posts: 7,501member
    Apart from executive salaries I'd like to see lawyer expenses for these tech companies. And the number of man hours it takes from board members, key managers.
  • Reply 3 of 26
    boltsfan17boltsfan17 Posts: 2,198member
    Quote:
    Originally Posted by Benjamin Frost View Post

     

    Seeing as streaming services pay musicians approximately 1 cent for every million plays, I see this as a storm in a teacup.


    Apple may be forced to pay a ton of money. SiriusXm lost and had to pay $100 million. 

     

    EDIT: I wanted to clarify SiriusXm didn't lose to Zenbu. Zenbu's lawsuit is basically the same thing others sued SiriusXM over. 

  • Reply 4 of 26
    crowleycrowley Posts: 6,068member
    I don't understand the complaint. If federal copyright law for pre-1972 songs has expired then where is the duty to pay royalties?

    Did I miss something?
  • Reply 5 of 26
    boltsfan17boltsfan17 Posts: 2,198member
    Quote:

    Originally Posted by Crowley View Post



    I don't understand the complaint. If federal copyright law for pre-1972 songs has expired then where is the duty to pay royalties?



    Did I miss something?

    The issue is copyright law. They won against SiriusXm because they argued the music was protected on state level and the judge ruled in their favor. 

  • Reply 6 of 26
    crowleycrowley Posts: 6,068member
    So states have different copyright laws? Ok.

    Does that mean Apple could (theoretically) continue to sell these songs in states that don't have these laws?
  • Reply 7 of 26
    boltsfan17boltsfan17 Posts: 2,198member
    Quote:
    Originally Posted by Crowley View Post



    So states have different copyright laws? Ok.



    Does that mean Apple could (theoretically) continue to sell these songs in states that don't have these laws?

    I'm not a lawyer, but from my understanding, if federal laws are different than state laws, in most cases the federal law will supersede the state law in court. I don't know why SiriusXm didn't appeal the ruling and take it to a higher court. Under California law, pre 1972 recordings are protected, but they aren't on the federal level.

     

    EDIT: I guess SiriusXM are appealing the rulings in California and NY.

  • Reply 8 of 26
    jfc1138jfc1138 Posts: 3,090member
    The Turtles, not Zenbu (or to the point Relix Records), won an initial ruling, they didn't get the $100m they asked for and the September 2914 California ruling is under appeal. And a New York ruling of a three year infringement window cuts the payout tremendously if that were to hold.

    I guess proposed federal legislation might clarify this.
  • Reply 9 of 26
    boltsfan17boltsfan17 Posts: 2,198member
    Quote:

    Originally Posted by jfc1138 View Post



    The Turtles, not Zenbu (or to the point Relix Records), won an initial ruling, they didn't get the $100m they asked for and the September 2914 California ruling is under appeal. And a New York ruling of a three year infringement window cuts the payout tremendously if that were to hold.



    I guess proposed federal legislation might clarify this.

    I was just reading about the ruling that happened this month in New York. It sounds like congress will have to get involved to clarify the law. 

  • Reply 10 of 26
    crimguycrimguy Posts: 118member



    I don't believe Congress will automatically get involved.  They did that already when they enacted the Federal Copyright Act of 1976, which specifically carved out an exception for works created before February 15, 1972, and governed under either common law or state law.  I read the language of the Turtles order granting summary judgment in their favor, and the Court's logic does indeed appear sound.  

     

    What's the remedy?  Dunno, but back payments would doubtlessly be one of them.  I think they'll tally the number of plays and figure out how much each track is worth.  FYI, the Spotify play count for the Turtles "Happy Together", their most popular song, is 14 million.

     

    Also interesting to note that The Turtles, despite having their music broadcast publicly for years without demanding royalties, was still victorious.  The defense of laches is inapplicable.

  • Reply 11 of 26
    crowley wrote: »
    So states have different copyright laws? Ok.

    Does that mean Apple could (theoretically) continue to sell these songs in states that don't have these laws?

    This isn't about SELLING songs, it's about PLAYING them commercially...


    Darn, this covers the best of the "Fugs"!! All my favorites like "Group Grope," and "I Feel Like Homemade Shit."
  • Reply 12 of 26
    flaneurflaneur Posts: 4,524member
    crimguy wrote: »

    I don't believe Congress will automatically get involved.  They did that already when they enacted the Federal Copyright Act of 1976, which specifically carved out an exception for works created before February 15, 1972, and governed under either common law or state law.  I read the language of the Turtles order granting summary judgment in their favor, and the Court's logic does indeed appear sound.  

    What's the remedy?  Dunno, but back payments would doubtlessly be one of them.  I think they'll tally the number of plays and figure out how much each track is worth.  FYI, the Spotify play count for the Turtles "Happy Together", their most popular song, is 14 million.

    Also interesting to note that The Turtles, despite having their music broadcast publicly for years without demanding royalties, was still victorious.  The defense of laches is inapplicable.

    What's the play count of "Sin City," by the Flying Burrito Brothers, out of curiosity?
  • Reply 13 of 26
    pazuzupazuzu Posts: 1,728member
    Apple's bag of hurt.
  • Reply 14 of 26
    crimguycrimguy Posts: 118member
    flaneur wrote: »
    What's the play count of "Sin City," by the Flying Burrito Brothers, out of curiosity?

    334,696. Huge hit by any standard.
  • Reply 15 of 26
    boredumbboredumb Posts: 1,417member
    Quote:
    Originally Posted by Boltsfan17 View Post

    I'm not a lawyer, but from my understanding, if federal laws are different than state laws, in most cases the federal law will supersede the state law in court.

    I'm not a lawyer either - and I'm sure plenty will weigh in - but my own sense was that the greater protection supersedes.

     

    Quote:

    Originally Posted by pazuzu View Post

    Apple's bag of hurt.

    LOL - your new nickname???  ;)

  • Reply 16 of 26
    flaneurflaneur Posts: 4,524member
    crimguy wrote: »
    334,696. Huge hit by any standard.

    Thanks. Disappointing, though. It was a great song for its time, maybe one of the reasons I ended up In LA. Gram Parsons was a huge loss.
  • Reply 17 of 26
    davidwdavidw Posts: 977member

    The headline reads as though this pertains to all pre-1972 tracks but the first sentence states only "certain pre-1972 tracks". So how many songs are we talking about? 100? 1000? 1,000,000?. How many of them are "hits" and well known? I'm pretty sure Zenbu don't own any of the Beatles songs.  Or songs on the London label. Or songs own by Sony/Columbia label. Or Motown label. Or the publishing rights of songs that was once own by Micheal Jackson. 

  • Reply 18 of 26
    According to Wikipedia:

    "...Relix Classics, (an) imprint of Relix Records digitally releases the works of heritage artists such as Jorma Kaukonen, Hot Tuna, Flying Burrito Brothers and the New Riders of the Purple Sage. These are distributed digitally by Egami Media."

    http://en.m.wikipedia.org/wiki/Zenbu_Media

    Some fairly obscure stuff. I seriously doubt they're going to get a massive payday.
  • Reply 19 of 26
    flaneurflaneur Posts: 4,524member
    Appears like Relix doesn't own the original Gram Parsons/Chris Hillman "Sin City," which was on the album [I]The Gilded Palace of Sin[/I], A&M Music. What Relix owns seems to be a live version of a later Burrito group. The original song was a real work of comic-apocalyptic literature, sort of in the vein of [I]Day of the Locust[/I] or [I]The Loved One[/I]. A real LA genre, in other words.
  • Reply 20 of 26
    zoetmbzoetmb Posts: 2,492member
    Quote:
    Originally Posted by DavidW View Post

     

    The headline reads as though this pertains to all pre-1972 tracks but the first sentence states only "certain pre-1972 tracks". So how many songs are we talking about? 100? 1000? 1,000,000?. How many of them are "hits" and well known? I'm pretty sure Zenbu don't own any of the Beatles songs.  Or songs on the London label. Or songs own by Sony/Columbia label. Or Motown label. Or the publishing rights of songs that was once own by Micheal Jackson. 




    If you're talking only about "hits" and hits as songs that made the charts, you're not talking about that many songs:   between 1955 and 1999 only 23,144 songs made the Billboard Pop charts, although that doesn't include album tracks that weren't singles and didn't make the charts, "turntable hits", or songs that made the R&B/Soul, Country or Jazz charts that didn't make the Pop charts.    If we prorate that for 1955-1972, it's probably under 8000 songs.  If you take those and include only the songs that Sirius or streaming services like Pandora would actually play, it's far less. 

     

    This lawsuit is about performance rights, not publishing rights.   (The Turtles didn't write some of the songs they were suing over, like Bob Dylan's "It Ain't Me Babe".)    Complicating the matter is that in the U.S., over-the-air radio stations don't have to pay for performance rights, although there's a big push on to finally change that.   In most other countries they do.   Over-the-air analog radio stations pay only publishing rights, via ASCAP, BMI and SESAC.    Digital stations have to clear performance via the Digital Millennium Copyright Act with Sound Exchange. 

     

    The problem is that Congress carved out an exception for recordings made before February 17, 1972 and it permits state law to control performance rights on those recordings until 2067. 

     

    The strange thing about Congress ignoring the performance rights on pre-1972 songs is that they kept expanding the amount of years that copyright covered publishing rights in order to appease corporations.   Disney especially was very vocal in this regard - they kept claiming that if the copyright terms weren't expanded, anyone could make pornographic cartoons with the Mickey Mouse character because "Steamboat Willie" was about to enter the public domain.    And so copyright terms that were once 56 years (as of 1909) got expanded over the years to 95 years or more in many cases.   

     

    And while Federal law does supersede State Law, the absence of a Federal law doesn't supersede State law, so we have these lawsuits.   But really, Congress should get involved because the law is complex enough without each State having its own law for pre-1972 recordings. 

     

    I'm not a lawyer although I've worked with copyright and music is especially complicated because there's both publishing and performance rights and the law varies for analog and digital "broadcast" as well as live performance, but in general terms, for published works (not performance) registered or first published in the U.S. (as of 2013):

     

    Published works before 1923 are generally now in the public domain.

     

    Published 1923-1977:

    Without copyright notice:  in the public domain.

     

    Published 1923-1963:

    With copyright notice, but not renewed:  in the public domain

    With copyright notice and renewed:  95 years from publication date

     

    Published 1964-1977:

    With copyright notice:  95 years from publication date.

     

    Published 1978 to 3/1/89:

    Without notice and without registration within 5 years: in the public domain

    Without notice but with registration within 5 years or created after '77 and published with notice: 70 years after death of author.  If corporately owned, earlier of 95 years from publication or 120 years from creation.

    Created before 1978 and published with notice in specified period: the later of above or 12/31/2047. 

     

    Published 3/1/1989 to 12/31/2002:  

    Created after 1977: 70 years after death of author.  If corporately owned, earlier of 95 years from publication or 120 years from creation.

    Created before 1977: the later of above or 12/31/2047.

     

    Published after 2002: 

    70 years after death of author.  If corporately owned, earlier of 95 years from publication or 120 years from creation.

     

    Sound Recordings:

    Unpublished:

    Prior to 2/15/1972:  Subject to state common law protection.  Enters public domain on 2/15/2067.

    After 2/15/1972: Life of author + 70 years.   For anonymous works, 120 years from date of fixation.

     

    Published in the U.S.

    Prior to 2/15/1972:  Subject to state common law protection.  Enters public domain on 2/15/2067

     

    2/15/1972 to 1978: 

    Published without notice:  public domain

    Published with notice: 95 years from publication.  Enters public domain 2068 at the earliest

     

    1978 to 3/1/89: 

    Published without notice and without subsequent registration: public domain

    Published with notice: 70 years after author death or if corporate, lesser of 95 years or 120 years after creation.  Enters public domain no earlier than 2049.

     

    After 3/1/89:

    70 years after author death or if corporate, lesser of 95 years or 120 years after creation.  Enters public domain no earlier than 2049.

     

    If published outside the U.S., the rules vary somewhat from above, but generally, recordings published between 1923 and 2/15/1972 will enter the public domain on 2/15/2067.

Sign In or Register to comment.