Unhappily Together: Flo & Eddie Inc. v. Sirius XM Radio Inc.

Posted by on Sep 29, 2014

In a legal battle questioning copyright protection for the 1967 hit song, “Happy Together,” the U.S. District Court for the Central District of California held that sound recordings made before February 15, 1972, are granted exclusive ownership rights under California’s copyright laws. (Read the order here)

The Turtles – the 1960s band who owns the copyrights to their song “Happy Together” – sued Sirius XM for the satellite radio provider’s unauthorized use of the song. The band claimed that Sirius streamed, broadcasted, and even used their song in operation of the satellite radio provider’s business without the band’s permission. Sirius did not dispute these facts, but contended that because it had lawfully purchased a copy of the song, it was free to publicly perform it.

What makes this case interesting is the applicable law and timing. Under 17 U.S.C. § 114(a) of the Federal Copyright Act, protection is offered only to works created after the February 1972 date. However, the federal statute does not preempt state law, which the Turtles happened to base its case on.

The band brought suit under California Civil Code § 980(a)(2), which provides copyright protection for sound recordings created before the federal law. Furthermore, California, unlike many other jurisdictions, offers copyright owners the exclusive right to publicly perform their works. This is a point of law that proved to be crucial for the Turtles.

The Turtles moved for summary judgment on all their claims, including infringement via public performance and reproduction by Sirius. In its opinion, the court interpreted the California copyright law to protect sound recordings created before 1972 in the same manner that the federal copyright statute protects works created after 1972 – that is, granting exclusive ownership rights, including the right to publicly perform. With that, the court held that Sirius infringed on the Turtle’s copyrights by its public performance of their song and granted summary judgment on all issues, but only on the basis of public performance conduct.

The court also made mention of “covers,” where a third party records a song with new instruments. The court clarified, saying that under the California statute copyright ownership does not stop a person from creating a cover, even without the permission of the owner, as long as the third party “produce[s] the sounds independently rather than recapture the actual sounds in the copyrighted recording.”

As for now, the stage has been set in California for copyright owners of sound recordings predating the 1972 Federal Copyright Act. Only time will tell if other hit bands from decades past will bring similar claims.