It was a brave move indeed when the dynamic duo Flo & Eddie, Inc. filed a $100 million lawsuit against satellite radio giant SiriusXM last summer. At the time Rolling Stone carried the story, claiming “the satellite radio giant has infringed on millions of old recordings from a multitude of artists.” The story was originally covered by The Hollywood Reporter, who just posted an update on Sept. 23, 2014, “in a ruling with far-reaching consequences, Flo & Eddie of The Turtles convinced a judge that their public performance rights were violated.”
The suit’s center is collectively, all musical artists, songwriters, producers are to receive royalty payments based on the precedent that federal copyright protection for the entertainment industry was specific only to recordings after 1972. Rolling Stone’s Erin Coulehan explained, “Section 114 of the Copyright Act…carved out a statute of limitations on exclusive rights…for artist compensation.”
Essentially, the way that SiriusXM was paying royalties on the pre-1972 works was SiriusXM sent a complete song log to the musical monolith Sound Exchange and a lump sum of royalties owed. This was done until 2011 and did not include pre-1972 recordings. Royalties were distributed to “all artists on Sirius’ playlist.” Rolling Stone’s Coulehan noted that “Two years ago, Sound Exchange requested that SiriusXM document everything that it was paying for, and SiriusXM has since stopped reporting pre-1972 recordings.”
Today’s announcement in “The Hollywood Reporter” noted “U.S. District Judge Philip Gutierrez…has elected to grant summary judgment to the plaintiffs on the issue of whether SiriusXM violates public performance rights.” This is not the “recording on the computer servers and replaying later” side of the issue. Eriq Gardner also reports, “SiriusXM fails to persuade the judge that California’s law was ambiguous” regarding the federal copyright law. This suit was filed just in California, so you can expect other suits to follow soon. Then there’s Pandora, Spotify, etc. as subscription services who have not “asked or secured permission”
Basically Flo & Eddie own all the rights to their recordings, and from the civil minutes of the judgment (full documents are included in the Hollywood Reporter), “Through its satellite and Internet radio services, SiriusXM has publicly performed 15 separate pre-1972 sound recordings that are exclusively owned by Flo & Eddie.” The Turtles also claim they know Sirius XM has been playing Turtles songs for seven years and before the lawsuit, they had not asked SiriusXM to stop performing its recordings or seek a license.” There’s the performing the recordings and then reproducing the recordings per the suit, because
UNITED STATES DISTRICT COURT -CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.CV 13-5693 PSG (RZx)DateSeptember 22, 2014TitleFlo & Eddie Inc. v. Sirius XM Radio Inc.,
On the public performance use, the parties do not dispute any of the materials factsregarding whether Sirius XM publicly performed Flo & Eddie’s sound recordings.
¶23. Sirius XM does not deny that it routinely publicly performs Flo & Eddie’s sound recordings in the course of its business; rather, it argues that the bundle of rights that attaches to copyright ownership of a pre-1972 sound recording does not include the exclusive right to publicly perform the recording.
6:15-19. Accordingly, once Sirius XM has lawfully purchased a copy of a Flo & Eddie recording, it broadcasts and streams that recording to paying audiences without first obtaining permission from Flo & Eddie to do so.
20:19-21.Flo & Eddie contends that, in California, copyright ownership of a pre-1972 sound recording includes the exclusive right to publicly perform the recording; therefore, if anyone wishes to publicly perform such a recording, they must first seek authorization from the recording’s owner.
So, if you’re still following the complex basis for the class action suit, “The Turtles are arguing that federal law isn’t applicable in regard to pre-1972 music,” so they’re seeking $100 million in damages and more importantly, “an injunction against SiriusXM for distributing pre-1972 recordings.” And this is just in California. Plus, it’s just satellite radio; other subscription services and potentially terrestrial radio stations, Hollywood Reporter’s Garner noted, could be next on the list of suits.
This second aspect of the lawsuit has the greater impact, as it would theoretically, then, open the door for other artists who own the rights to their music outright to launch a similar lawsuit. Perhaps fewer artists actually own all their rights as the majority of 60s music is still controlled by the label or has been sold and transferred among parties and you couldn’t get everyone together the way it’s “just Howard and Mark” for The Turtles.
Can you get a picture of SiriusXM actually being interested, one band by one band, in having to stop the “60s on 6” channel, plus trim two years off of recordings played on the “70s on 7” channel, and pull any of the pre-1972 songs from the blended channels, such as “The Bridge,” that includes crossover tunes. And then there’s The Beatles’ catalog pre-1972 (who owns all their rights these days?), and every other vital and viable 60s artist on the air, many of whom are still extremely viable and touring as fans love the artists who made those tunes first famous. Particularly are the 60s and 70s the “soundtrack of the lives” of Baby Boomers across the country.
Will SiriusXM ever obtain permission for, or even want to play another Turtles song, since they’re perceived in the big building as potentially biting the hand that has kept their music alive for years for free. It’s up to a real attorney to determine but how much added value does the music have when a station plays a recording that would not otherwise be viable to want to hear, had the station not played the artists’ music? For listeners, every time they hear a 1960s recording, they invariably travel back in time to a point in their lives when things were simpler.
Subsequently you think of the song, your song, and the band who created the record you used to own, the band you used to see, and then you start thinking about whether or not they’re touring. From the spark of memory created by the radio station, you’ve thought about that band as viable once again, rather than “those guys and gals who used to be around 40 years ago.” Then if you look for their concert, buy a ticket and go see them, then you stand in line to purchase an autographed CD, if you ask them to pose for pictures with you and then you share those pictures on social media, is that not value-added advertising (for free) for the band and the artist?
Would it matter to The Turtles if SiriusXM stopped playing their songs? Only if they plan to keep touring. If they’re headed to Shady Acres, then they “go on, take the money and run” and it’s up to the other acts to do the best they can. It’s only the pre-1972 recordings at stake. Should SiriusXM be forced to come up with any portion of the $100,000,000 that Flo & Eddie are seeking, after the decision can be stalled around in negotiations, does the fight fizzle out? Or does it embolden other artists to hire the same law firm and knock on the door of SiriusXM and announce “Candygram”?
It would appear that, once California is behind them, Flo & Eddie will road trip to other states to initiate legal proceedings. And yet, there’s every possibility that all the terrestrial radio stations might band together with juke box owners and SiriusXM and simply get every single radio conglomerate of stations to stop playing The Turtles. Would that impact Flo & Eddie’s viability as performing artists? You just wonder, because “out of sight (or earshot), out of mind” could come into play.
These days the venues, arenas and casinos that hire The Turtles and the Happy Together Tour are hopeful that people still want to see these bands. Social media can find you reminding people you’re still here on Facebook, Twitter, and Instagram but it’s not a given that people want to see you just because your band’s name is in view. Many music lovers still don’t know that many of the 60s artists are still alive and performing until and unless a friendly DJ reminds you that if you liked the song you just heard, you can see this artist in person at the xyz fair, etc. and all that good favor could end abruptly.
But, if they win anywhere near $100,000,000, one can guess that they can buy an entire PR firm to do nothing but tell people where they’ll be. Powerful people just get more powerful, and the others who don’t own their own musical rights will just have to tough things out, it’s presumed. SiriusXM has strong listenership and strong fan bases for all their other genre channels, so think of how much money they could save if they just turned the dial “off” on their 60s on 60 channel. Thanks so much for that, if that’s the case.
Flo & Eddie, who by lawsuits long ago and far away, are advertised on tour today as “The Turtles Featuring Flo & Eddie” (exact wording from their official web site) harken back to other legal issues that they resolved ultimately in their favor, after being taken advantage of by several of their managers in days of old (watch the YouTube and see “what happened” back in the day). Mark Volman and Howard Kaylan, adopted the “Flo & Eddie” identities as shortened monikers, short for a 1972 album “The Phlorescent Leech & Eddie,” released by the duo, who also sang with Frank Zappa and the Mothers of Invention, as well as also singing prolifically in studio sessions for other rock artists.
Call the guys anything, but call them when you want to hear great old rock. At one point in their careers, they actually had musicians for their “West Coast Turtles band” and their “East Coast Turtles band” when gigs took them across the country. Both musicians are among the kindest professionals you’d ever want to know, and their leadership of the suit is because they believe in this very strongly or they wouldn’t go to the trouble and time to deal with it.
How much weight do The Turtles carry? They carry plenty, artistically and professionally as architects of the annual “Happy Together Tour,” which included over 50 dates in summer, 2014, the 30th anniversary of their first “Happy Together Tour.” You may not know their real names, their other real names, or even The Turtles themselves if you’re not a music historian, fanatic, or savant the way 80% of Baby Boomers proclaim themselves to be, and they, in fact, are. But their songs are ones you know, hum, sing along to, and generally just have great memories when you hear them….on SiriusXM radio stations.
Twenty songs fill the grooves of the CD (or vinyl, depending on your collection) of “The Turtles: 20 Greatest Hits,” including “It Ain’t Me Babe,” “Let Me Be,” “You Baby,” “She’s My Girl,” “Elenore,” “You Showed Me,” “She’d Rather Be With Me,” and, of course, “Happy Together,” featuring the catchy chorus that has all the ‘bah-bah-bah-bah-bah-bah-bah-bah-bah-bah-bah”s in it. So where would you be hearing all these songs? Here’s the crunch.
The “60s on 6” channel and “70s on 7” channel of SiriusXM, then, are at the center of the focus, along with other genre-related channels on the satellite radio giant, whose singular focus is on songs wherein The Turtles and others in the class action are mostly impacted. One can argue that the “50s on 5” and even “40s on 4” channel are included.
The wiser-than-they-look and more business savvy Howard Kaylan and Mark Volman are mostly focused on, well, themselves and their music. They’re not as zany, chaotic, or scattered as they enjoy appearing to their audiences. Yes, they’re the same fellows who came out wearing meat capes as a send-up to Lady Gaga, and they’re as “in your face” anti-establishment on stage as they ever were, but they’re frankly, just a hoot to watch and grand showmen.
Kaylan still sings their hits in original keys, with his gifted voice hidden under a “hey, you kids get off of my lawn” exoskeletal attitude of tolerating, oh, just everything. Mark Volman wields one heck of a cowbell, too, but he has a philosophical, spiritual, and educational side that you forget about when you’re watching him bouncing up and down on stage like a pogo stick. They’re quite brilliant, actually, but they love to hide that fact because they just have wild amounts of fun when entertaining their audiences.
Volman, a professor of music entertainment at Belmont College, and Kaylan, most recently an author of his biography, “Shell Shocked” have made an abundant living particularly the past five years in resurrecting their iconic “Happy Together Tours.” In the past five years, they’ve been ringleaders and anchor entertainment, and they’ve invited their friends who have, for more than 30 years, toured continuously because that’s what all the classic rock fans have wanted.
Their friends include: The Association, The Buckinghams, Gary Puckett & the Union Gap, Gary Lewis & the Playboys, Micky Dolenz, Mark Lindsay, the Grass Roots (when Rob Grill was alive and even after his passing), and newer year touring pals Mitch Ryder, Mark Farner and Chuck Negron. For thirty years, they’ve been in demand and they are still as vitally in demand today.
There’s only one conceivable fly in the proverbial ointment that comes from all of this litigation—are they biting the hands that are feeding them? Let’s face it, in Los Angeles, New York, and Chicago, oldies radio stations that feature programming from the 1960s are disappearing every single day.
Kent Kotal of the Forgotten Hits web site waxes profound on that very subject each week, casting appropriate aspersions on the robotic manner in which programming consultants have swept wide paint brushes over every single terrestrial radio dial and done away with “classic rock” that remains beloved. It’s beloved but it’s essentially unheard these days as legendary DJ Scott Shannon struggles to keep his “True Oldies” network flowing the say it did, say, five years ago.
Thanks to the same folks in the same suits, carrying the same virtual cyber-suitcase, programming of “classic rock” features a sickening overabundance of what someone mistakenly calls classic rock. To wit, The Eagles, John (Cougar and uncougar) Mellencamp, Billy Joel, and then there’s The Eagles again. Kotal has kept a clipboard and pen in his car to and from work in Chicago and he’s got the numbers to back up his rightful disdain. AM/FM is where the Boomers are, but they still can’t find the “real” classic rock of the 60s any more. To some programmers new on the block “classic rock” is Madonna, Cyndi Lauper, or Joan Jett. Not hardly, but that’s what is on nostalgia radio their programming way, however distasteful that concept.
A June, 2014, Digital Music News survey reports that “52.1% of all music listening happens on AM/FM radio.” In this survey, SiriusXM listening was 7.7% and internet radio/music such as Pandora, Spotify and Slacker radio accounted for 11.6%. There’s a law suit against Pandora out there in cyber-land as well, so this is an issue that could change the landscape for at least 19.3% of nontraditional radio listening outside your car and computers.
So, when you don’t hear the hits you know and love, as a card-carrying member of Baby Boomers, on terrestrial radio (as it’s now known), where could you count on hearing your favorite songs? You guessed it: Sirius/XM radios in your car and on your computer and on your smart phones. However, more music lovers listen outside of the cars, survey says. In fact, local radio stations, with local news, traffic and weather and favorite DJs you count on as “yours” are the ones that predominate listener habits today.
Once some out-of-court settlement (a foregone conclusion) occurs, then it will be Sirius/XM’s turn to turn the turntables on all the artists in the class action suit. They could shut down their “60s on 6” channel entirely and the exceptional Phlash Phelps could sleep in and ride roller coasters all day until landing in a plum spot on terrestrial radio. The phenomenal Lou Simon and his Sixties Satellite Survey would find homes and be heir apparent to all the stations that used to adopt Casey Kasem. Cousin Brucie might just have to live at Palisades Park or WABC or WCBS instead of his weekly commute to Sirius/XM studios. Imagine a world without “Love Hour, Half Hour, Our, Half Hour” each week. No, make it stop.
Say the law suit is settled with a bulk sum; then what? You can’t hear The Turtles, The Buckinghams, Gary Puckett, Herman’s Hermits (No more Peter Noone weekly hour-long show?), Dusty Springfield, Dionne Warwick, Gary Lewis, Fifth Dimension, and oh yes, The Beatles, on and on and on…on the satellite. Then there’s the no-cost, no-charge, free gifts of generous public relations to every single 60s artist on tour.
Phlash Phelps begins his days with weekly (free) on-air interviews with folks like Freddy “Boom Boom” Cannon, catching up with the artists on tour that you hear on the station. Then he tells you where your favorite classic rock artists are touring (for free), to get listeners excited to the fact that (a) you’re still touring, and (b) that reports of your death are premature. Plus, there’s the “guest artists and their favorite top hits” that (for free) give artists more exposure to remind audiences of their frequent appearances.
For those who remain bent on the dollar signs and the bottom line because they are approaching a day and time they won’t be touring (all good things must end, but not right now), some might see the suit led by The Turtles as a last ditch buy-me-out, and I’ll go away lump sum payment. It might be or it might not be, “one last hurrah” to get royalties upped for their retirement and estate contributions. Is it being done because it’s the right thing to do for all classic rock artists? That’s a fair question to ask and it all depends on which artists you’re talking about.
Other artists from the 60s though, are still working hard for their living, and if their songs are not on the radio, especially those artists who work in the 10-artist package shows where you have one band and 8 people run up and sing their two hits and then the next act comes along, it will surely be “out of sight, out of mind.” There’s Herman’s Hermits starring Peter Noone who will play packed houses every weekend, with or without SiriusXM and it only impacts Peter Noone anyway, not his band, who are not entitled to royalties as they were not on the original records.
Then there’s Herman’s Hermits starring Barry Whitwam, who won’t get gigs because you won’t know where you can find them because you never hear of terrestrial radio stations sponsoring rock concerts in home towns anymore—that went out 20 years ago when they all became partnered up with the giant radio conglomerates of Clear Channel (now known as iHeart), Citadel Broadcasting, Bonneville Broadcasting, on and on. No conglomerate cares about the individual artists the way personal DJs can, and do, to promote the “ones who brought them to the dance.”
SiriusXM has done more than any single terrestrial radio station to promote classic rock music. Unless this is your livelihood at stake, your royalties at stake, and your entertainment conglomerate at stake, it’s not your dog in the fight and you may only peripherally give a flying fig about the outcome. On the other hand, unless people pay attention to this law suit, they’re forever doomed to hear John Mellencamp’s “Jack and Diane” and The Eagles “New Kid in Town” all day, every day, for the foreseeable future.
Let’s hope that SiriusXM and Flo & Eddie can find some reasonable solution to this giant high-dollar suit, so that classic rock can survive and we can all be, with apologies in advance to Professor Volman and author Kaylan, “Happy Together.” All together now: “Bah-bah-bah-bah” or “Blah-blah-blah-blah.” Which will prevail? Things are just beginning to get interesting. Stay tuned and (for now) don’t touch that dial.