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September 11, 2013 | RIAA News

Record Companies Sue SiriusXM For Unauthorized Use of Pre-1972 Copyrighted Recordings in California

Legendary Artists Eric Burdon, Judy Collins, Sam Cooke (Estate), Steve Cropper, Duke Fakir, Sam Moore, Dionne Warwick, and Nancy Wilson Support Case

A group of independent and major record labels today sued SiriusXM in California state court for using songs recorded before 1972 — including standards from the 40’s and 50’s, rock and roll from the 50’s and 60’s, and the Motown Sound — without paying the artists and rights holders who brought those songs to life.

Through a quirk of history, federal copyright law did not protect sound recordings until 1972.  Recordings made before 1972 — staples of satellite radio — are protected by state laws.  SiriusXM has interpreted that fact such that they only pay for the use of songs recorded after 1972, and not for using the songs that were recorded before 1972.  The company’s self-serving decision means that it pays a band like the Four Tops when it uses the 1973 hit, “Ain’t No Woman (Like the One I Got)”  but not when it broadcasts the group’s iconic songs from the 60’s like “Baby I Need Your Loving,”  “Sugar Pie Honey Bunch,” or “Reach Out.”

Below are comments from several different artists supporting the case and then background and excerpts of the legal arguments.

Eric Burdon (“House of the Rising Sun,” “Don’t Let Me Be Misunderstood,” others) comment:  “Everybody knows that the music industry has been going through lots of big changes but it’s always been true that older artists find it harder to earn a living.  How long can we be out there on the road?  How long can a body suffer the trials of constant travel?  SiriusXM’s treatment of elder artists such as myself is totally unfair. They’re using our music to attract subscribers.  Great bluesmen and the early rockers, like me, already suffered at the hands of unscrupulous sharks and we hoped this practice had stopped long ago.  SiriusXM’s record profits shouldn’t come at the expense of artists like me, nor should they come at the expense of any artist.  It’s not a level playing field.  We rely on being paid fairly by services like SiriusXM.  I will continue to give it all I’ve got until my river runs dry, but Sirius XM doesn’t think I deserve to be paid fairly for what I do.  After 50 years of service in the music industry, in the interest of entertaining the people, I think we deserve better.”

Judy Collins (singer/songwriter and activist) comment:  “I am shocked to once again find that SiriusXM, in violation of the trust given to it when its license was granted by the FCC, insisting that it pay royalties to performers on radio, is dancing the same old dance, the same old game that terrestrial radio played with us for decades by withholding the royalties from performers who sing the songs that we hear on the radio.  It means that all my biggest hits, from “Both Sides Now” and “Who Knows Where the Time Goes, from “Turn Turn Turn” and “Suzanne, from “Some Day Soon” to “Bird on a Wire,” have not received the royalties due to me under the license granted to SiriusXM radio.  They are turning my lost royalties into their profit.  It is disgraceful, unfair, and probably criminal that SiriusXM is STEALING monies due to me and other performing artists.  Performers should be paid their fair share of the royalties from their songs.”

Nicole Cooke (Estate of Sam Cooke) comment:  “On behalf of my grandfather Sam Cooke’s estate, my grandmother and the entire Cooke family who are impacted everyday by the failure to receive royalties from companies like SiriusXM who refuse to pay us for the use of our copyrighted works recorded prior to 1972, we are sincerely hopeful that the state of California will rule favorably on this case and begin to reverse the trend of big companies profiting on protected works and treating certain artists and their heirs as second class citizens.  SiriusXM is using my grandfather’s music to attract millions of subscribers and broadcasting his recordings for free.  SiriusXM has been enjoying record profits at the expense of artists like my grandfather for too long.  As the music industry changes and traditional revenue streams are replaced by a proliferation of digital services, it is very important that my grandfather’s estate is treated fairly by new businesses that commercially exploit his works without any accountability.”

Steve Cropper (guitarist, songwriter, and member of Rock & Roll Hall of Fame group Booker T. & the MG’s) comment:  “It’s an outrage that SiriusXM, a multi-billion company making a big profit based partly on the popularity of its oldies channels is refusing to pay artists like me one penny.  That’s not right and that needs to change.”

Abdul “Duke” Fakir (The Four Tops) comment:  “I am extremely surprised and disappointed to learn that SiriusXM has not been paying for the use of pre-1972 recordings, as so many of their channels are built on songs from that period, not only by The Four Tops but by many other artists as well.  Many of their listeners tune in specifically to hear this pre-1972 music, so in all fairness, I would hope that they would see the importance and necessity of straightening this matter out as quickly as possible.”

Sam Moore (“The Legendary Soul Man”) comment:  “SiriusXM’s treatment of my peers, the legacy artists who recorded our hits before 1972 is outrageous.  SiriusXM is using mine and my friends’ talent, our music, to attract subscribers, but they don’t think we deserve to be paid like our fellow artists who recorded after the ‘72 cut off.  SiriusXM’s record profits shouldn’t be at the expense and on the backs of artists like me.  We are not all rich, we are not all healthy, we are not all able to work the way we did when we were younger.  We think we have the right to expect to be paid fairly for our historic works by services like SiriusXM.  We know there are no laws preventing SiriusXM from paying us.  I think it’s morally wrong that us older artists are excluded because we recorded before what amounts to an arbitrary date in the early 70’s.  We’ve all found it harder, as the music industry changes, to keep our boats floating and earn a decent living so we appreciate and applaud the record companies, the copyright holders of our masters, taking the litigation burden for all of us affected by Sirius’s refusal to pay us.”

Dionne Warwick comment:  “Classic tracks recorded before 1972 are an important part of American culture, and an important of SiriusXM’s programming.  The great artists played on the 40’s, 50’s, and 60’s stations should be treated with respect and properly compensated as SiriusXM is required to do, so I am asking Sirius not to “Walk On By” and do the Right Thing!!”

Nancy Wilson (Grammy award-winning jazz singer) comment:  “The position taken by SiriusXM is simply unjustifiable.  They carry specific channels which feature the music of the 1940’s, the 1950’s and the 1960’s.  The music from those decades is universally recognized as the very foundation for all that followed.  SiriusXM trades on that legacy yet refuses to compensate the performers who created it.  Hopefully, the court will recognize that for SiriusXM to discriminate against performers based on an arbitrary date in 1972 is the kind of arbitrary discrimination we all fought so hard to eliminate in this country.”

Background On Case:

Under California law, the state has “provided uninterrupted common law and statutory protection to the owners of sound recordings against those who operate them without license or consent” (excerpt from complaint).  The federalization of sound recordings in 1972 by the U.S. Congress explicitly preserved “any rights or remedies” under relevant state laws.

“California has provided common law and statutory protection for pre-72 recordings without any exclusions and including the right of public performance,” according to the record companies’ complaint, which further states:  “SiriusXM refused to obtain the licenses and pay for the daily public performance and reproduction of thousands of plaintiffs’ pre-72 recordings that SiriusXM advertises and transmits to millions of its paying subscribers over dozens of its satellite radio channels.”

These particular works are an especially lucrative contributor to the $3.4 billion in revenue SiriusXM generates.  “SiriusXM regularly advertises and promotes the availability of pre-72 recordings on its services.  A significant portion of SiriusXM’s channels feature classic sound recordings, including channels exclusively devoted to songs from the ‘40s, ‘50s, ‘60s, and ‘70s,” according the complaint.  That SiriusXM refuses to obtain a license or pay any royalties “is in sharp contrast to many other services that regularly obtain licenses” (complaint excerpt) for those particular recordings, the record companies state in the filing.

In addition to Sony Music Entertainment, UMG Recordings and Warner Music Group as plaintiffs, the lawsuit includes ABKCO, the label representing a variety of the most popular legacy musicians whose works are being illegally exploited, including The Rolling Stones, The Animals and Sam Cooke.