Not So Happy Together- Common Law Performance Rights in Sound Recordings

By: Ariane Monaco

“Happy Together” is the famous song at issue in a class action lawsuit, but not the way to describe the future relationship of the parties.[1]

In Flo & Eddie v Sirius XM Radio, Inc., the company, Flo & Eddie, controls the master recordings of about one hundred songs by The Turtles recorded before 1972.[2] On the other side, Sirius Radio XM, the nation’s largest satellite and internet radio service provider, has broadcasted some of these pre–1972 songs without any licenses or payments for these broadcasts.[3] Because of this, Mark Volman and Howard Kaylan, from the band The Turtles, sued Sirius XM Radio for broadcasting their songs without paying royalties.[4] They asserted that their performance rights have always existed under the common law and deserve compensation for invoking those rights.[5] However, the court disagreed with that argument, and said that even if it were to be true, Congress’s enactment of the Sound Recording Act of 1971 took away that common law right for recordings made after 1972.[6] In the opinion, Judge Canady expressed,

Flo & Eddie essentially asks this court to recognize an unworkable common law right in pre-1972 sound recordings that is broader than any right ever previously recognized in any sound recording. Doing so would require this court to, among other things, ignore the lengthy and well-documented history of this topic—something we decline to do.[7]


The Florida Supreme Court held that Florida common law does not recognize a right to collect royalties from recordings made before 1972.[8]

As of current law, when records get played on traditional AM/FM radio, the station does not need to pay any royalties to the artist or the label; they only have to pay the songwriter and the publisher for use of the songs.[9] Unlike traditional analog radio stations, satellite and online radio services are afforded a different right, referred to as the digital performance right.[10] The digital performance right applies to companies like Pandora and Sirius XM, and it requires these platforms to pay royalties to artists and labels as well as to songwriters and publishers.[11] Traditional radio stations do not have to pay any recording royalties at all, and digital services like Sirius and Pandora only pay for songs recorded after 1972.[12] Because of this, artists are suing in order to get recognition for performance rights that would require traditional radio stations to pay hundreds of millions of dollars in royalty fees. [13]

The reason radio stations in traditional analog broadcasting avoid paying licensing fees to the music publisher and the record company is because of the concept that the owner of a copyright in a sound recording does not have an exclusive right of public performance.[14] This is due to past lobbying.[15] Broadcasters in 1972 lobbied and blocked the adoption of a provision that would have allowed public performance recording rights.[16] They did not support these rights because they felt that the promotional benefits of broadcasting the recording companys’ songs substituted the need to pay license fees.[17] The discrepancy between radio stations and internet broadcasting services was first displayed in an amendment of the Copyright Act statute.[18] This digital amendment requires license fees to be paid for songs broadcasted over the internet.[19] The most recent bill introduced, the Performance Rights Act, expands protection for public performances of copyrighted songs and gives record companies exclusive rights to public performance that would make radio stations, big restaurants, and other entities pay license fees.[20]

The reason for the discrepancy between old and new songs is that state-laws govern old songs recorded before 1972, whereas federal copyright protect songs recorded after 1972.[21] Section 106 of The Copyright Act addresses the exclusive rights in copyrighted works.[22] For sound recordings, it gives exclusive rights to the copyright owner to do and authorize the performance of the copyrighted work publicly by means of a digital audio transmission.[23]  However, the trend in states’ common laws performance rights do not give performance rights to songs produced before 1972, which leaves artists who recorded these songs without compensation.[24]

Flo & Eddie, Inc. has brought attention to this performance rights issue in various states such as Florida, New York, and California.[25] The Florida Supreme Court ruling is consistent with the New York Ninth Circuit holding; but a California federal district judge strayed from the majority and issued a ruling in favor of the band, leaving the issue to the higher court on appeal.[26] These courts have clearly not found this to be an easy issue, and New York is a good example of the discrepancy between opinions. After the New York lower court ruled in favor for The Turtles, the Second Circuit remanded the case back to the New York Court of Appeals, concluding that New York common-law copyright has never recognized a right of public performance for pre–1972 sound recordings and refused to grant that right in fear of extensive consequences.[27]
Consequences of giving a right of public performance to pre–1972 recordings would affect composers, radio stations, the public, and artists.[28] Composers would be paid fewer royalties if the sound recording copyright holder has control over when and where the song is played.[29] The costs of playing the older songs would deter the radio stations from playing them, and possibly limit or completely stop broadcasting pre–1972 music.[30] Consequently, the public wouldn’t be able to listen to this music.[31] Less exposure can lead to less public interest in attending live concerts, festivals, and purchasing merchandise that typically are the leading source of income for the artist, potentially having a negative effect on the artist’s revenue. [32]

The plaintiffs in Flo & Eddie, Inc. argue that the right of public performance should apply when a sound recording is used for “commercial purposes.”[33] However, the court finds the term “commercial purposes” hard to define.[34] Would right of public performance apply to AM/FM radio broadcasting?[35] An argument can be made that because traditional radio stations make money by advertisements, the recordings are already being used for commercial purposes.[36] Does this right extend to individuals directly buying individual songs?[37] Does it extend to indirect payments like bar or club entrance fees for a live DJ playing music that night?[38] Because of the difficulty in answering these questions and the expansiveness of the questions, the New York and Florida courts reason that the legislature is the best equipped to address these questions.[39]

Typically, music performance rights are not too much of an issue because of organizations governing those rights such as the American Society of Composers, Authors & Publishers (ASCAP) or Broadcast Music, Inc. (BMI).[40] These organizations charge a license fee based on a station’s revenues.[41] These licenses, known as blanket licenses, assure the broadcasters that they can perform any program held by the organizations.[42] Licenses last for a specific period of time, usually a year.[43]

Even more protections resulted when Congress enacted the Digital Performance Right Act (DPRA).[44] The DPRA established mandatory licensing and a rate-setting scheme.[45] The court in Flo & Eddie, Inc. acknowledged the long-standing relationship between artists and recording companies, which involved the artists wanting the recording companies to play their records to encourage name recognition and increase album sales.[46]

Courts have neglected to consider how the Supremacy Clause affects the state law claims because these laws granting digital performance rights to sound records produced before 1972 are preempted by the Supremacy Clause.[47] Enforcing these laws could frustrate the purpose of Congress enacting the DPRA.[48] The DPRA establishes a compulsory licensing system for digital Internet and satellite radio stations services to operate in compliance with their legal obligations.[49] However, if state laws require licenses for digital performance rights or royalty payments used by internet or satellite radio stations outside of the compulsory license system, it could frustrate the purpose.[50]
Moving forward, if the California Supreme Court agrees with the lower court ruling, finding that there is a performance right for pre–1972 recordings, it will lead to inconsistencies throughout the nation.[51] It will mean that performance right royalties need to be paid in California but not any other state, which can lead to confusion and possible Constitutional issues.[52] Allowing individual courts in individual states to craft a patchwork of inconsistent remedies would disrupt the balance struck by Congress and interfere with the functioning of the compulsory license system for digital sound recording performances.[53] This is a result that the Supremacy Clause does not permit.[54]



[1] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 70 N.E.3d 936, 937 (N.Y. 2016).

[2] Id.

[3] Id.

[4] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., SC16-1161, 2017 WL 4837765, at *1, *1 (Fla. Oct. 26, 2017).

[5] Id.

[6] Carolina Bolado, The Turtles Lose Pre-1972 Copyright Battle In Fla., Law 360 (Oct. 26, 2017),; see 17 U.S.C.A. 114; see also Sound Recording Act of 1971, IT Law Wiki, (last visited Nov. 15, 2017),, (“The Act extended federal copyright protection to sound recordings fixed on or after February 15, 1972 . . . and declared that sound recordings fixed before that date would remain subject to state or common law copyright. [S]ound recordings were not granted the full array of exclusive rights afforded other authors. In particular, the public performance right was withheld.”)

[7] Flo & Eddie, Inc., 2017 WL 4837765, at *8.

[8] See id. at *7–8.

[9] Chris Cookie, The Turtles Lose Pre-1972 Battle In Florida, Complete Music Update (Oct. 27, 2017),

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] The Berkman Klein Center for Internet & Society, William Fisher, CopyrightX: Lecture 3.3, The Subject Matter of Copyright: Music, YouTube (Jan. 27, 2015),

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Bolado, supra note 5.

[22] 17 U.S.C.A. § 106(6).

[23] Id.

[24] Bolado, supra note 5.

[25] Id.

[26] Id.

[27] See Flo & Eddie, Inc., 70 N.E.3d at 949.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33]  Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id. at 950–51.

[40] E. Scott Johnson, Considering the Source-Licensing Threat to Performing Rights in Music Copyrights, 6 U. Miami Ent. & Sports L. Rev. 1, 3 (1989).

[41] Id.

[42] Id.

[43] Id.

[44] 17 U.S.C.A. 114(b).

[45] See Flo & Eddie, Inc., 70 N.E.3d at 948.

[46] See id. at 948–49.

[47] Julie L. Ross, [Un]happy Together: Why the Supremacy Clause Preempts State Law Digital Performance Rights in Radio-Like Streaming of Pre-1972 Sound Recordings, Georgetown Law (Apr., 17, 2015),

[48] Id.

[49] Id.


[51] Id.

[52] Id.

[53] Id.

[54] Id.