Turtles to Satellite Radio: Get Sirius About Pre 72 Public Performance Royalties

“Got a idea tell you what let’s do
Let’s go out to that place on the Turtle Bayou
We’ll maybe get lucky, maybe get shot
It couldn’t be half of the trouble I got” Turtle Bayou by James McMurtry

You remember the Turtles? The mid ’60s group best known for the hit song “Happy Together?” The semi-parody love song that ended with the line “So Happy Together. How is the weather?” Not exactly the type of sheer profundity that propelled Lennon, McCartney, Dylan, and Paul Simon into Rock and Roll immortality. And yet, when it comes to the music of pre ’72 AM radio, the cornucopia of rock, soul, pop, psychedelic, country, and easy listening that all managed to coexist on stations such as WABC in New York and WFIL in Philly, the Turtles just may go down in history–not for their music, per se, but for their persistence in pursuing their legal rights.

It all has to do with the interplay between Federal Copyright law and state protection. In general, where Copyright is concerned, Federal law trumps state law under a doctrine called “preemption.” Simply but, when Congress passes a law to implement a constitutional right, like copyright or patents, the states generally can’t step in with laws of their own–otherwise, there could be overlap, inconsistencies, and confusion. But what about areas where Congress has chosen not to act? One of those areas concerns so-called “public performance rights” for songs recorded before 1972. Under current Federal Copyright law, when a satellite radio station plays a song recorded after 1972, the station pays royalties to the composer and to the performer. The latter royalty is called the “public performance right.” But this performance right applies only to songs recorded after 1972. Essentially, satellite radio gets to play pre-72 recording for free, according to Federal Law.

Many musicians with hit songs from before MTV object to this free-pass for old recordings. They claim that it robs them of income if not livelihoods. Facing the music, several states have passed laws to “correct” the situation. Not coincidentally, the biggest states to do this–New York, California, FLorida–are where many disgruntled makers of Golden Oldies live and work today.

Sirius satellite radio has been fighting these state laws; and the band that has been their defender is not the Beatles, the Rolling Stones, The Who, or any other giants of the Woodstock era. No, it’s the Turtles who have come out of music history’s shell to press the case for pre ’72 royalties under state law.

And like that mythical contest that pit a speedy and cocky frontrunner against a slow but steady underdog, the Turtles have been winning the race. Just last week a Federal Court in New York affirmed a ruling that the satellite radio must pay the tab for pre ’72 public performance royalties. Judges in California have reached the same conclusion, and a Florida court is expected to rule on the issue soon.

So when it comes to listing the most influential animal-themed bands of the 20th Century, the Turtles may be an afterthought after BYRDS, ANIMALS, EAGLES, CRICKETS, and BEATLES; but all of these groups have either disbanded, been decimated by the ravages of time, or are infamously acrimonious. With their legal legacy, however, the TURTLES appear to be still Happy Together.

QUOTE OF THE DAY: “One of the nice things about a favorite pop song is that it’s an unconditional truce on judgment and musical snobbery. You like the song because you just do, and there need not be any further criticism.” Henry Rollins

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