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Old Music Brings New Headaches

Groups face legal hassles over pre-’72 content

Old songs are bringing new headaches for broadcasters, given the complex issue of federal copyright protection for music recorded prior to 1972 and potential royalties owed by broadcasters at the center of lawsuits in California and New York.

Separate suits filed by ABS Entertainment in August in federal courts in California and New York target iHeartMedia, CBS Corp. and Cumulus Media — and the pre-1972 music those broadcasters play. The suits seek injunctive relief and monetary damages. They claim the defendants “delivered music content, recorded prior to 1972, through broadcast radio channels, HD Radio channels, the Internet and mobile devices without consent.”

ABS, which seeks a jury trial along with an injunction to prevent use of pre-1972 music, is trying to include over-the-air public performance rights in sound recordings, in addition to streaming public performance, in its complaints against the broadcasters, according to court documents.

iStockphoto/pagadesign Broadcasters were expected to reply to the ABS complaint by mid-October in at least some of the cases after receiving a 30-day extension. The parties are working to coordinate actions between the mirroring suits in the two states, according to court filings.

“Defendants anticipate bringing a motion challenging the sufficiency of the complaint,” according to the latest court documents.

Observers told Radio World that most likely the broadcasters will move to dismiss the lawsuits, with court-ordered dispute resolution likely to follow if the cases move forward.


The class action suit filed by ABS Entertainment targets the digital rights to music the broadcasters play produced prior to Feb. 15, 1972, that isn’t covered by the Digital Performance Right in Sound Recordings Act of 1995 nor the Digital Millennium Copyright Act, according to the suit (see sidebar). ABS filed the suits on its behalf and all other similarly situated owners of sound recordings, thus the class action nature of the suit.

The class action designation allows ABS to add other defendants to the suit rather than going after every potential defendant in separate suits, legal observers said. Additionally, if the defendants lose the case, all pre-1972 recordings would be covered for public performance rights.

ABS Entertainment is an Arkansas-based company that has exclusive ownership to the sound recordings of R&B artists Al Green, Ann Peebles, Otis Clay and several other artists, according to court documents.

In many states, including those where ABS filed its suits, sound recordings are protected by common law, which gives a recording’s owner the right to perform that recording on the radio, or to license that right to third parties, according to ABS.

“It is clear that federal law would not permit such a lawsuit. However, since ABS is claiming a public performance right under common law for pre-1972 sound recordings for streaming and over-the air, it goes beyond federally protected post-February 1972 public performance rights in sound recordings,” said Melodie Virtue, an attorney at Garvey Schubert Barer. She is not involved in the case.

The suit against Cumulus in California states, “Cumulus has chosen to copy tens of thousands of pre-1972 recordings to its servers and to transmit, copy, perform, broadcast and stream them to millions of users daily without authorization.”

Huge amounts of royalties are at stake for the unauthorized performance of pre-1972 sound recordings until this point and going forward, observers said.


The focus of the federal class action lawsuits filed by ABS Entertainment in August against iHeartMedia, CBS and Cumulus Media are sound recordings created prior to Feb. 12, 1972 and whether the broadcasters should be paying royalties for playing those songs on their airwaves.

Federal copyright protection has long applied to songwriting rights but it wasn’t extended to sound recordings until 1972, observers said, and then only partial protection was given.

Therefore, terrestrial radio broadcasters have not paid recording royalties on the music they play produced prior to Feb. 15, 1972, nor after that, said Kevin Goldberg, a member at Fletcher, Heald, Hildreth PLC.

“When Congress decided to provide some copyright protection for sound recordings in 1972, it did so prospectively, and it was only partial protection. It gave the owner of the copyright in a sound recording the exclusive right against unauthorized reproduction, unauthorized creation of derivative works and unauthorized distribution to the public,” Goldberg said. “But it specifically did not create an exclusive right to publicly perform the work.”

So while Congress extended the list of media protected under United States copyright law to include sound recordings 1972, there was no performance right of any kind in sound recordings until the late 1990s, Goldberg said.

“The Digital Millennium Copyright Act created a performance right for digital transmissions — satellite and webcasting, but not over-the-air,” he said.

SoundExchange is the entity responsible for collecting digital music recording royalties and distributing them to copyright owners.

The lawsuits are similar to several others filed against Sirius/XM concerning pre-1972 music, including the “Flo and Eddie” suit that found the satellite company liable for playing songs by The Turtles. Sirius/XM is appealing that court decision. It also settled a lawsuit earlier this year brought by Capitol Records. Sirius/XM agreed to pay a $210 million settlement to Capitol and four other record companies to cover performance rights to pre-1972 music through Dec. 31, 2017, according to a press release from the company.

Virtue, who advises clients regarding copyright, music licensing, service marks and online digital streaming and podcasting, said the deal Sirius XM reached with record labels provides some impetus for broadcasters to reach a settlement.

However, the complexity of the performance copyright issue and the differences between state and federal law likely cloud those prospects, Virtue said.

Either way, this “gray area is begging for Congress to act to clarify what’s covered and what’s not,” she said.

There is ambiguity to some state laws that created or clarified copyright in sound recordings since they didn’t speak directly to whether that included a performance right, said Kevin Goldberg, a member at Fletcher, Heald, Hildreth PLC.

It would seem a drastic step for the radio broadcasters to abruptly stop playing pre-1972 music, but that is in part what the lawsuits seek in lieu of royalty payments, according to court documents.

“The broadcasters could stop playing pre-1972 music but that’s not going to result in the dismissal of the lawsuit, since the suit seeks payment of back royalties,” Goldberg said. “That’s something these broadcasters would have to consider if they lose: Is it more advantageous at that point to agree to a royalty structure or to stop playing pre-1972 music?”

Goldberg, who specializes in intellectual property matters, said the only broadcasters that could possibly benefit now by ceasing the performance of pre-1972 music are those that have not already been sued.

“In the event that ABS wins, they’ll probably turn to smaller broadcasters as the next target,” Goldberg said.

Goldberg said it is likely the plaintiffs and defendants are discussing ways to streamline the case prior to entering dispute resolution.

“So it’s safe to assume that settlement discussions are occurring,” he said.

IHeartMedia, CBS and Cumulus de-clined comment on the ongoing litigation.