Sirius XM’s ’70’s on 7′ Copyright Clash

Although Sirius XM claims playing pre-1972 music recordings without paying artists is permissible under the federal Copyright Act, Flo & Eddie's suit focuses on the copyright protections afforded by state laws.
November 17, 2015

On a long road trip, there seems to be nothing more calming than rolling down the windows and turning up the radio. However, the predominance of commercials on most mainstream radio stations seems to completely disrupt such tranquility. Being interrupted by a commercial after belting out the words of your favorite Beyoncé or Bruce Springsteen song is simply just bothersome.

Satellite radio providers like Sirius XM have emerged to eliminate such irritations and offer commercial free listening for a monthly subscription fee. With such diverse channel offerings from Elvis Radio to Hip-Hop Nation, there seems to be a channel for music lovers everywhere. And with 25.8 million paying subscribers, it seems consumers agree. [1]

However, Sirius, among other radio broadcasters, are increasingly facing legal battles for playing pre-1972 music recordings without paying the artists or licensors. Under Section 114 of the federal Copyright Act, copyright protection only extends to reproduction and distribution of recordings made on or after February 15th, 1972. [2] So, Sirius, realizing the gap in protection, sought to capitalize on the fact that federal law thus does not cover pre-1972 recordings. Sirius channels such as ‘70s on 7 freely broadcast these recordings at no charge and operate under no licensing.

A current issue within the music industry is the lost royalties artists face from such practices. Radio stations are essentially circumventing the need to license and pay for pre-1972 sound recordings, thereby facilitating a substantial loss of revenue for these artists. In 2014, Mark Volman and Howard Kaylan, famously “Flo & Eddie,” brought copy infringement suits against Sirius XM Radio, Inc. in California, New York, and Florida for damages totaling over $100 million. [3] Volman and Kaylan argue individual state laws offer copyright protection against Sirius playing these recordings without permission. [4] In May 2015, a U.S. District Court judge in Los Angeles certified a class action against Sirius while a U.S. District Court judge in New York also ruled the suit could be brought under New York law. [5] However, most recently, a Florida judge held Florida law does not require Sirius to pay royalties on pre-1972 recordings. [6]

Flo & Eddie’s suit sought to capitalize on the division between federal and state copyright law, hoping state and common law afforded more substantial copyright protection. It appears that even states diverge on their stances, with New York and California largely favoring the rights of the artist in contrast to Florida state law ruling for Sirius. New York and California’s stances aren’t surprising since both states are considered predominant and thriving entertainment centers. Whether the outcome of these cases results in an increase in litigation from other pre-1972 artists is yet to be seen, but it appears that companies like Sirius will continue to clash with artists over copyright maneuvering and mechanics.

So keep listening to those “oldies but goodies” recordings on Sirius’s ‘70’s on 7’ while you still can!

1. Nomi Prins, The Turtles Win Class Action Certification In Sirius XM Copyright Lawsuit, Opening Door for Others, FORBES, (Oct. 9, 2015, 5:21 PM),
2. See id.
3. Jonathan Stemple, Sirius XM wins a U.S. Court Ruling Over Pre-1972 Songs, REUTERS, (Oct. 9, 2015, 5:19 PM),
4. See id.
5. See id.
6. See id.