Things are turning against former Turtle’s members Mark Volman and Howard Kaylan in their pursuit of performance royalties for pre-1972 recordings.
Under U.S. law, royalties for the playing of records on the radio only apply to music released since mid-1972 so labels and musicians from the early days of the rock era receive nothing when you hear their music (songwriters and publishers do get paid). The newer internet streaming stations and services have adapted that position even though it has never been clear that those laws apply to them.
A few years ago, Volman and Kaylan (aka Flo and Eddie) began a legal fight in individual states to have services like Sirius/XM, Pandora, etc. start paying them royalties on their Turtles catalog and, with a win in court, they expected all of the other older artists to begin getting paid, too.
The California courts were the first grant Volman and Kaylan their royalties but the results have been mixed in other states, either initially or upon appeal. That was the case this past week in Florida where their Supreme Court has found against the artists.
The judgement stated:
Flo & Eddie essentially asks this court to recognize an unworkable common law right in pre-1972 sound recordings that is broader than any right ever previously recognized in any sound recording. Doing so would require this court to, among other things, ignore the lengthy and well-documented history of this topic – something we decline to do.
Florida common law has never previously recognized an exclusive right of public performance for sound recordings. To recognize such a right for the first time today would be an inherently legislative task. Such a decision would have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit.
That leaves just California as the only state that has supported the artists’ in their fight with New York and, now, Florida overturning any findings upon appeal. This, most likely, opens the door to further litigation in California and a possible final nail in the coffin for artists who recorded music prior to 1972.
