By Max Willens ibtimes.com 8/28/15
The next time your favorite ‘60s song comes on the radio, turn it up and enjoy it — it could be one of the last times you hear it over the air. A number of class action lawsuits filed this week in New York could wind up costing America’s largest radio broadcasters tens or even hundreds of millions of dollars and permanently change the way radio is programmed in the United States.
The plaintiff, ABS Entertainment, is suing the three largest terrestrial radio broadcasters in the country, CBS, iHeartMedia and Cumulus, for unpaid royalties it claims they owe them for playing its artists’ songs on the radio. The Arkansas-based company owns the copyrights for a number of prominent 1960s R&B artists, including Al Green, but it is filing its suits on behalf of all artists and labels that released music prior to 1972, asking not just for royalties but that those stations stop playing the recordings.
That means music by many of the titans of American music, including Elvis Presley, the Beatles, the Temptations and countless others, could wind up disappearing from radio airwaves.
“[CBS and its stations] have usurped for themselves the fruits of Plaintiff and the Class’s financial and creative investments,” one complaint reads. “Defendants are profiting from the results of Plaintiff and the Class’s expenditures and skill without having to incur any expense or risk of its own in relation to the Pre-1972 Recordings.”
The key to ABS’s claim is an old revision to the U.S. copyright system that has recently become the subject of intense legal interest. Back in 1972, Congress added sound recordings to the list of media protected under U.S. copyright law, but the protection only applied to songs created after Feb. 12 of that year. Anything made prior to that date, including some of the biggest, most iconic songs in the history of American popular music, would remain governed by state law. And in many states, including New York and California, where ABS filed its suits, sound recordings are protected by common law, which, ABS contends, gives a recording’s owner the right to perform that recording on the radio, or to license that right to third parties, like radio stations.
According to the lawsuit, because CBS, Cumulus and iHeartMedia never licensed that right from ABS and all the other rights holders they have violated the song owners’ rights, and they are on the hook for royalties.
Legal scholars had predicted that suits like these could be in the foreseeable future after a judge in California issued a summary judgment this year against Sirius XM. Two members of the 1960s band the Turtles filed a $100 million class action suit against the satellite radio provider along similar lines, and the California judge determined that a 1982 law intended to address the discrepancy between pre- and post-1972 recordings did leave the right to license public performances in the hands of a song’s rights holders.
Though the circumstances are slightly different — because it is considered a digital transmission or performance, satellite radio is governed by a separate government decree — the ruling gave legal credence to the idea that the owners of recordings made prior to 1972 had a case.
A representative from CBS Radio told The Hollywood Reporter that CBS would “vigorously defend” itself.