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No Public Performance Right in California for pre-’72 recordings.

‘Flo and Eddie', The founders of iconic '60's band The Turtles, were dealt what's likely a final blow in their long-running lawsuit against digital broadcasters and others claiming infringement of common-law copyrights in their recordings. (Sound recordings were not protected under federal copyright law until February, 1972).

Photo by Marcel Heil on Unsplash

Flo & Eddie had argued that pre-1972 sound recordings were still covered by state law, and that such laws included a performance right. Their suits in many other states had gone against them, and last week, the 9th Circuit Court of Appeals ruled that California's common law protection did not create or protect a performance right.

So, in this, the last of the outstanding cases, the Court has confirmed that oldies radio and 50's themed restaurants need not pay royalties when they play these pre 1972 recordings. (But they still DO pay performance royalties for the musical compositions through organizations like ASCAP and BMI).

(The result in this case is somewhat limited, since Congress' enactment of Music Modernization Act extended the federal performance right for digital performances to cover such pre-'72 recordings.)

While it's still possible that Flo N Eddie will appeal to the Supreme Court, commentators don't think it likely the Court will take up the case.

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