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NYC Litigation Blog

Sunday, November 19, 2017

Owners of Hit “Happy Together” Lose Copyright Case in Florida

Are recordings made before 1972 subject to copyright protection?

The owners of The Turtles’ hit song “Happy Together” sued Sirius XM Radio seeking enforcement of its rights in federal court in Florida.  Recently, Florida’s highest court ruled that the owners of the popular song could not force radio stations to pay for its use of the pre-1972 song.  The court held that Florida law does not recognize the exclusive right of public performance in pre-1972 recordings, which were made prior to the implementation of new federal copyright laws. This ruling echoes an earlier New York court ruling.

History of Federal Copyright Laws 

Copyright laws date back to early British law, but the modern American Copyright Act was not passed until 1976.  The Copyright Act of 1976 provides copyright protection to “original works of authorship” which are “fixed in any tangible medium of expression,” from which they can be reproduced or otherwise communicated.  The Act allows protections for various works of art, ranging from literary and musical works to soundrecordings, and dramatic works. 

Before passage of the federal Copyright Act of 1976, the Copyright Act of 1909 provided federal protections to works that were published and had notice of the copyright affixed.  State copyright laws protected unpublished works.  Those works that were published but did not have a copyright affixed were therefore not protected by federal or state law.

Federal Copyright Protection for Pre-1972 Recordings 

Sound recordings did not receive federal protection until February 15, 1972.  Before this time, state law provided someprotections for sound recordings.  Both New York courts and Florida courts have held that early copyright holders of sound recordings do not own the right of public performance under common law.  

Sound recording archivists have lobbied Congress to bring pre-1972 sound recordings into the federal copyright system. This, it is urged, would best serve the interests of archives and others in preserving old sound recordings.  For now, the owners of pre-1972 sound recordings may struggle to obtain compensation for the use of their recordings by major internet radio companies like Sirius and Pandora in some states.


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