NEWS

By Anandashankar Mazumdar

Nov. 29 — Sirius XM Radio Inc. and two members of the 1960s band the Turtles have reached a settlement that could bring $99 million to owners of rights in pre-1972 sound recordings, according to a motion for preliminary approval of a class action settlement filed Nov. 28 in the U.S. District Court for the Central District of California. Flo & Eddie, Inc. v. Sirius XM Radio Inc. , C.D. Cal., No. 13-05693, motion for preliminary approval of class action settlement 11/28/16 .

According to the motion, rightsholders who join the settlement class will be guaranteed $25 million when the settlement gets final approval, and additional amounts based on success in other court proceedings, up to $99 million.

Anyone who has rights in a pre-1972 recording that Sirius XM used from Aug. 1, 2009, to Nov. 14, 2016, will have the chance to file a claim for a portion of the settlement funds, according to the motion. And the settlement will encompass the entire United States, even though the certified class for this particular action applied only to California.

The settlement also gives Sirius XM a 10-year license to play the relevant recordings.

Flo & Eddie Inc.—the company owned by the two Turtles members—sued Sirius XM for playing hits like “Happy Together” without paying royalties. The federal Copyright Act doesn’t cover recordings made before 1972, so older records have been governed by individual state laws. Sirius XM had argued that there was no requirement under California law that it pay royalties for public performance for oldies.

In 2014, the federal court in California found that owners of pre-1972 recordings had a public performance right under state law. The Turtles members are also pursuing similar lawsuits under New York and Florida law.

In both those states, federal appeals courts have referred the question of whether rightsholders in pre-1972 recordings have public performance rights to their respective state supreme courts. At the federal trial court level, such a right was found under New York law, but not under Florida law.

Cohen & Cohen and Gradstein & Marzano P.C. represented Flo & Eddie Inc. O’Melveny & Myers LLP and Weil Gotshal & Manges LLP represented Sirius XM.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at AMazumdar@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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