The Turtles Win Class Action Certification In SiriusXM Copyright Lawsuit forums forums Portland Radio The Turtles Win Class Action Certification In SiriusXM Copyright Lawsuit

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    Andy Brown

    I first reported about this when the lawsuit was filed, but I can’t find the thread. This is good news for artists from the 60’s and early 70’s that have been essentially ripped off by Sirius XM.

    The 1960s band, the Turtles, won another victory in their battle to retrieve royalties for songs they recorded prior to February, 1972. This one could have broad financial implications for other artists, as well as digital and streaming firms.

    Yesterday, Central District of California Judge, Philip S. Gutierrez, granted Flo & Eddie, Inc. (the corporation formed by two of the original Turtles members that owns the group’s recording rights) class certification in their lawsuit against SiriusXM Radio.

    Vocalists Howard Kaylan and Mark Volman (later known as Flo and Eddie) led the LA-formed band. Famous for several Top 40 hits including their 1965 cover of Bob Dylan’s It Ain’t Me Babe, the Turtles scored their biggest (and only number one) smash in 1967 with Happy Together. The song entered the Grammy Hall of Fame in 2007.

    Flo and Eddie also had later recordings under the “Flo and Eddie” name and also recorded and toured with Frank Zappa and The Mother’s Of Invention.

    The Court has already granted a summary judgment of liability in favor of Flo & Eddie, Inc. On March 3, 2014, the parties disagreed as to how the case should proceed. Flo & Eddie. Inc. wanted class certification to precede the filing of all motions for summary judgment. Whereas, SiriusXM wanted an early summary judgment motion on liability prior to the class certification. Doing so would mitigate the possibility of more musicians joining the class.

    SiriusXM argued that class certification wasn’t needed in this case, due to the disparity of the size of potential claims. The Court saw it differently. Judge Gutierrez argued that a class distinction was needed, precisely because of smaller claimants, stating that, “given SiriusXM’s aggressive litigation tactics thus far, its public statements about intent to appeal adverse decisions, and its decision to continue to perform pre-1972 recordings without authorization, it may be cost-prohibitive for owners with smaller value claims to pursue their claims against SiriusXM in this environment.”

    Demolishing SiriusXM’s other argument – that similar suits had already been brought by big labels – the Court said, “That three powerful record labels have the resources to launch their own lawsuit against SiriusXM does not indicate that the individual lawsuit alternative is also a workable or preferable method for small owners.”

    In another major coup for smaller artists especially, the Court concluded that “it would be inefficient for recording owners, SiriusXM, and the courts to litigate these similar factual and legal circumstances a thousand times separately.”

    Flo & Eddie, Inc. also filed a class-action suit against Pandora in federal court in Los Angeles on October 2, 2014, claiming Pandora was guilty of copyright infringement under California law. They requested more than $25 million in damages. Pandora has said it will file an appeal, as Judge Gutierrez denied Pandora’s arguments in the firm’s motion to dismiss the case this February.

    How much the Turtles recoup for themselves, or for other artists that may join the class, is not clear. But one thing is certain, there is a pressing need to revise federal copyright law to be at least as artist-friendly as state laws, especially given the increasing prevalence of digital and streaming platforms. SiriusXM and Pandora aren’t the only firms, or stations, adhering to federal laws that have fewer artist protections than certain state ones. Indeed, all royalty splits caught up in pre-digital and pre-streaming laws require revised protections for the artists involved.

    The Turtles will be on their Happy Together Tour this summer.

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