Digital-Music services face another challenge on playing classic tunes

25 January 2015 - 02:00 By Hannah Karp
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Zenbu Magazines sues Apple, Google, Sony over pre-1972 song recordings

Digital-music services that play oldies without compensating the performers are facing mounting challenges, as the owner of recordings by Hot Tuna, New Riders of the Purple Sage and the Flying Burrito Brothers filed lawsuits Thursday against several online music service operators including Apple Inc., Google Inc. and Sony Corp. for using songs recorded before 1972 without permission.

The company that says it owns these bands’ recordings, Zenbu Magazines LLC, is seeking class-action status for suits filed in U.S. District Court in Northern California, arguing that services such as Apple’s free iTunes Radio, and Sony’s Music Unlimited—which charges many subscribers $10 a month—have copied tens of thousands of so-called pre-1972 recordings onto their servers, transmitted them and performed them without seeking permission or paying performance royalties or licensing fees to the copyright owners.

The lawsuit against Sony claims that Zenbu and other members of the purported class are likely owed “many millions of dollars,” though the exact amount has yet to be determined.

A spokeswoman for Rdio Inc., one of the subscription services sued by Zenbu, said “we intensely respect copyright and the rights of all content creators, and pay royalties for every song available on Rdio.”

Representatives for Sony, Google and Apple didn’t respond to requests for comment, nor did attorneys representing Zenbu.

Sound recordings weren’t brought under the protection of federal copyright law until 1972. So earlier recordings, until now, have been protected by a patchwork of state laws, including California’s, and most digital music services haven’t been paying performance royalties to artists to play these older works.

But in September, the founders of the 1960s rock band the Turtles won a potentially game-changing victory in a lawsuit against Sirius XM Radio Inc., when a federal judge ruled that the satellite radio provider had violated California law by “performing” the band’s songs without authorization. The judge hasn’t ruled yet on other charges in the case.

The Turtles have similar cases pending against both Sirius XM and internet-radio giant Pandora Media Inc., in California, New York and Florida, while SoundExchange, an offshoot of the Recording Industry Association of America that collects digital royalties for performers and record labels, has sued Sirius XM and Pandora as well.

The 1972 rule wasn’t much of an issue in the past since terrestrial radio broadcasters are exempt from paying performance royalties on all sound recordings, no matter when they were made. That is because recording artists receive significant exposure from airplay that, at least historically, has translated into sales.

But satellite radio companies and digital-music services have been obligated to pay performing artists royalties for the digital use of their recordings since 1995, according to federal law, and as these services have amassed listeners, their royalty costs have ballooned.

Pandora has said it would be open to paying performance royalties on pre-1972 works if federal law required all music services to do so. Lawmakers in Washington are considering a broad overhaul of national copyright law, including the oldies issue.

Zenbu used to publish the music magazine Relix, originally aimed at fans of the Grateful Dead. Relix Records is the small label that distributed the recordings in question.

 

This article was originally published on 25-01-2015 on The Wall Street Journal

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