By Hannah Karp
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.
Write to Hannah Karp at hannah.karp@wsj.com
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