“Since 1940, it is a law more or less well established than once you have released a [sound recording] to the public, it could be broadcast on the radio without any additional payment to the record company or to the performers, ”Ochoa said in an interview on Monday. Ochoa noted that composers and record publishers collect royalties for the broadcast, but artists and record labels do not.
“The question was, ‘What does exclusive ownership mean? “And the court said, historically, that was limited to reproduction and distribution rights,” Ochoa said. “It did not include public performance rights.”
Ochoa noted that Flo & Eddie has filed lawsuits in Florida and New York, claiming copyright laws in those states grant performers radio royalties. Judges in both states rejected the argument that their copyright laws awarded royalties for radio plays. The Ninth Circuit ruling looked at these laws across the country and found the story to be the same in many states.
“The absence of a judicially recognized right of public performance in dozens of states underscores that no such right has ever existed under the common law,” Lee wrote for the panel.
Stephen Kinnaird, who served as counsel in an amicus brief filed by the National Association of Broadcasters, applauded the decision.
“What we saw in all three decisions was judicial restraint in not creating new common law rights,” Kinnaird said in an interview. He added that he was happy that the Ninth Circuit decision did not risk “upsetting” the broadcasting industry.
Emphasizing the complicated nature of the laws, Kinnaird said that “it would have been a nightmare to do it judicially” and that he was happy that the courts “recognized that this was something in the legislative field”.
Ochoa said a law had been enacted to change the way artists collect royalties.
“Congress changed federal law. Owners of sound recordings for pre-1972 works will be paid for digital streaming, ”Ochoa said, highlighting the 2018 Music Modernization Act. “Flo and Eddie lost the battle, but they won the war. They got Congress to change the law for performing artists in the future. “
Although they lost in the Ninth Circuit, Flo and Eddie were the recipients of a 2014 pre-trial settlement in the Central District of California.
“While we are disappointed with the outcome, we are pleased that the class members benefited from the $ 25 million cash settlement and several years of royalty payments over the life of the call thanks to our deal with Sirius XM. ”, Said Kalpana Srinivasan of law firm Susman Godfrey, Flo & Eddie’s lawyer for the Ninth Circuit arguments, in an email.
Sirius XM attorney Daniel Petrocelli of O’Melveny & Myers said in an email: “We are delighted that this important issue has been finally and properly resolved.”
Ochoa said artists will again have to look to Congress to extend the right of public performance to sound recordings on traditional analog radio and television broadcasts in order to collect these royalties.
“I am very happy that the Ninth Circuit has recognized that the history of public performance rights and sound recordings is important here and that the law should be interpreted in light of this history,” Ochoa said. “It’s really for Congress now. Congress can change the rules for TV performances and sound recordings if it wants to, but at least Congress has already done it for digital streaming.