The string trio Time for Three and S’More Entertainment filed a class action yesterday (Jan 17) in New York federal district court against “Defendants Entertainment One GP LLC and Entertainment One U.S. LP, doing business as E1 Entertainment and/or Koch Entertainment LP” for a variety of claims relating to the defendant’s direct deal with SiriusXM.
The class action complaint describes the suit:
4. In violation of the Class Member Contracts, Defendants entered into secret negotiations and agreements with satellite radio provider Sirius XM Radio (“Sirius XM”), for the exploitation of Plaintiffs’ and the Class Members’ intellectual property. Defendants have systematically failed to account for any revenue, or pay any portion of the revenue generated from the exploitation of the Class Members’ Musical Works on Sirius XM under this agreement.
5. Plaintiffs bring this nationwide class action on behalf of themselves and similarly situated Class Members arising from Defendants’ failure to properly account for and pay revenues generated for the distribution of the Class Members’ Musical Works on Sirius XM and other digital satellite radio providers. Plaintiffs bring claims including for breach of contract, breach of the implied covenant of good faith and fair dealing, an accounting, and declaratory relief. Plaintiffs seek monetary damages, injunctive, and/or declaratory relief on behalf of themselves and others similarly situated against Defendants’ for their willful violation of the Agreements….
SiriusXM will pay Flo & Eddie, and the other pre-1972 song rights owners in their class, at least $25 million as part of a settlement reached earlier this month on the eve of a California federal trial.
Pre-1972 sound recordings aren’t protected by federal copyright. So two members of oldies band The Turtles, Mark Volman and Howard Kaylan (Flo & Eddie), sued to be compensated for hits played on stations like SiriusXM Radio’s ’60s on 6.
The duo won summary judgment in 2014 when the court found Sirius’ use of their music violates public performance rights.
That $25 million is just the baseline, according to a motion for preliminary approval of the settlement filed Monday. Just how much that needle moves depends on what happens in the East Coast companion cases — and if Sirius appeals the court’s finding of liability in this case.
Big congratulations to Flo & Eddie (aka The Turtles) and class counsel Henry Gradstein for a great settlement in their indie label class action against SiriusXM for pre-72 sound recordings. The settlement is a guaranteed $25 million payment against a 5.5% license for 10 years which is worth between $45.47 million to $59.2 million assuming Sirius continues to play the remaining class member’s recordings at the same play rate as the past.
Update: Class attorney Henry Gradstein gave us this quote about the settlement:
“We are grateful to our clients, Mark Volman and Howard Kaylan of Flo & Eddie and The Turtles, who had the tenacity to stay the course over three grueling years of litigation on behalf of all members of the class, because they believed in what was right.”
[Editor Charlie sez: Thank you Howard, Mark and their attorney Henry Gradstein!]
The Turtles and SiriusXM may not quite be “Happy Together,” but they’re one step closer now that they’ve settled a California federal lawsuit over oldies royalties on the eve of trial.
Pre-1972 sound recordings aren’t protected by federal copyright. So, until recently, rightsholders weren’t being compensated for hits played on digital channels like SiriusXM Radio’s ’60s on 6.
Two of The Turtles, Mark Volman and Howard Kaylan, who are known as Flo & Eddie, won summary judgment in 2014 when the court found Sirius’ use of their music violates public performance rights. The trial was set to determine exactly how big of a check Sirius would have to write to fairly compensate the artists.
Details of the settlement are scarce, but attorneys filed a joint notice with the court on Monday.
First of all–it should be noted that Mr. Shapiro’s post falls into that category of public statements that I’d call a “non-denial denial”.
It’s also important to note that Mr. Shapiro’s comment is all about Washington, lobbyists, who did what to whom, settling old scores among the coastal elites, who owns who, who paid off who to do what, and so on. The funniest line in his post was that Google isn’t a bully. Now that is hysterical for those who have dealt with YouTube or tried to get anything from a jihadi recruitment video to “Banging Up for Dummies” taken down from any Google property. Almost as funny as blaming the Sony hack on North Korea.
I fear that it is necessary to point out to Mr. Shapiro that this blog is Artist Rights Watch, not Lobbyist Rights Watch, or Let’s Watch the Lobbyists. This may come as a shock to someone like Mr. Shapiro who’s been at this for so long, but it is very, very likely that anyone who reads this blog neither has any idea who he is nor cares very much.
If our readers know of the Consumer Electronics Association, it’s likely that they know the organization from its membership in the MIC Coalition.
The MIC Coalition is, of course, the multi-trillion dollar lobbyists who are trying to screw what’s left of the songwriting community and stop artists from being paid fairly for radio airplay.
Or they might know the Consumer Electronics Association from its funding of the group Fight for the Future, which conducted a rather shadowy campaign against the Copyright Office, including making statements at odds with the facts in fundraising emails.
That statement in the box? It never happened.
Here’s an excerpt from Schedule B of the 2014 tax return for Center for Rights in Action which is parent to Fight for the Future:
And then there was the classic line from David Lowery addressed to Michael Petricone (Mr. Shapiro’s right hand at CEA) when both were on a panel at the Future of Music Coalition Summit Poobahery in Washington regarding CEA’s support of the ill-fated Internet Radio Fairness Act: “Stop making shit up, man!”
Those are probably the ways that the vast majority of people who read this blog would know of the Consumer Electronics Association.
It would be well for Mr. Shapiro to observe that 2016 has seen the future–more artists have stopped looking to lobbyists to solve their problems. Those lawsuits against Spotify, Rhapsody, Sirius XM, Pandora and even the U.S. Department of Justice? All brought by individual creators with some courageous lawyers who are willing to take a chance–because of the statutory damages and attorneys fees provisions of the Copyright Act without which those creators would have to take yet more bullying from Mr. Shapiro and his members, Google or otherwise.
So hopefully Mr. Shapiro will understand my reaction to this statement in his comment:
[T]hankfully we won many battles as new forms of technology created huge new opportunities for our members…and for content creators.
If the last 15 years of Mr. Shapiro’s travails are what constitutes his “help” in fighting “battles”, if what we have to show for his “winning” these “battles” is the absolute skewering of songwriters, artists, authors, record producers, film makers, and everyone who works in these endeavors–not to mention the biggest income transfer in commercial history from creators to new boss tech companies as well as the commoditization of art and artists–I have one reaction that I think will be shared by “content creators” who read this blog.
The Turtles are suing SiriusXM in a “putative” class action being heard in California, New York and in Florida for infringing pre-72 recordings under the laws of those states. Sirius and Pandora seem to be hell-bent on denying pre-72 artists and their heirs any revenues for the wide exploitation of recordings from this era for reasons known only to them.
The Florida case in federal court brought claims against SiriusXM relating to Florida state common law copyright for (1) common law copyright infringement, (2) common law misappropriation / unfair competition; (3) common law conversion; and (4) civil theft.
SiriusXM won its motion on summary judgement in the federal trial court and The Turtles (aka “Flo & Eddie”) appealed to the 11th Circuit. In order to grant the summary judgement motion for Sirius, the federal trial court had to make a number of assumptions about unsettled areas of Florida state law that the appeals court were not prepared to endorse.
Federal courts in this situation have the ability to “certify” certain questions to an appropriate authority. The 11th Circuit has certified certain questions about the interpretation of Florida state law to the Florida Supreme Court. Depending on how the Florida Supreme Court answers these certified questions, the 11th Circuit will then be able to rule on the Turtles appeal.
So–while the Turtles have not won the substantive issues in the appeal as yet, they have lived to fight another day on appeal. To the extent anyone can read the tea leaves on these things, it does seem that the 11th Circuit was at least very interested in being fair to the Turtles and the putative class.
The certified questions are:
1. Whether Florida recognizes common law copyright in sound recordings and, if so, whether that copyright includes the exclusive right of reproduction and/or the exclusive right of public performance?
2. To the extent that Florida recognizes common law copyright in sound recordings, whether the sale and distribution of phonorecords to the public or the public performance thereof constitutes a “publication” for the purpose of divesting the common law copyright protections in sound recordings embedded in the phonorecord and, if so whether the divestment terminates either or both of the exclusive right of public performance and the exclusive right of reproduction?
3. To the extent that Florida recognizes a common law copyright including a right of exclusive reproduction in sound recordings, whether Sirius’s back-up or buffer copies infringe Flo & Eddie’s common law copyright exclusive right of reproduction?
4. To the extent that Florida does not recognize a common law copyright in sound recordings, or to the extent that such a copyright was terminated by publication, whether Flo & Eddie nevertheless has a cause of action for common law unfair competition/misappropriation, common law conversion, or statutory civil theft under FLA. STAT. 772.11 and FLA. STAT. 812.014?