Oldies Copyright Case On Tap in State Supreme Court

By William Vogeler, Esq. on November 03, 2017 | Last updated on March 21, 2019

Before 1972, they were so 'Happy Together.'

We're talking about copyright holders Flo and Eddie of The Turtles fame. Their biggest hit came in 1967, but they aren't so happy about it these days.

That's because courts have been ruling that pre-1972 recordings are not protected by copyright laws. New York and Florida have turned them down, and California could be next.


After the original Turtles group broke up, band members Howard Kaylan and Mark Volman created the comedic vocal duo Flo & Eddie. When digital broadcasters Sirius XM, Pandora Media and others started playing their old songs, they sued for copyright violations.

But New York's Court of Appeals said state law did not protect sound recordings before the Sound Recording Amendment of 1971, which extended federal copyright protection to recordings made after February 15, 1972. The Supreme Court of Florida followed suit in a separate case last month.

In that case, the Supreme Court said "Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings." A different question is before the California Supreme Court.

The court's docket asks whether Civil Code Section 980(a)(2) gives copyright owners of pre-1972 sound recordings an exclusive right of public performance. The statute says pre-1972 rights continue until February 15, 2047.

Common Law

If the Supreme Court says the statute does not apply, however, then the case will turn on whether common law protects pre-1972 copyrights. In Florida and New York, that didn't turn out so well for Flo & Eddie.

If California concurs with the other states, it may be the end of the copyright road for the musicians and other oldies. If the court takes a different road, it could change everything.

"If the Supreme Court of California grants pre-1972 copyright protection, that could spell serious chaos," according Digital Music News.

Nationwide broadcasters, like Sirius XM, would have to deal with different rules in different states. The situation could lead to continued litigation for years.

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