Music, Limited: Another Pre-1972 Sound Recording Suit Could Threaten Music Streaming Services

Screen Shot 2015-02-02 at 2.40.14 PMBy Jeffrey Echert

The battle over pre-1972 sound recordings continues. For the uninitiated, here’s the lowdown: Songs recorded before February 16, 1972 aren’t covered under the 1976 Copyright Act; instead, they’re covered by preexisting state copyright regimes. Over the last couple of years, this disparity has come to a head—for example, one New York state court ruled that because of a non-preemption provision in the Copyright Act, online service providers don’t get to claim DMCA safe harbor protections when dealing with pre-1972 sound recordings.

The latest player in this burgeoning battleground is Zenbu Magazines, a holding company that claims to own songs by bands such as the Flying Burrito Brothers and Hot Tuna. It brought suit earlier this month against a host of music-streaming services, such as Apple, Google, Slacker Radio, Escape Media Group, and Sony. While most of those complaints were voluntarily withdrawn less than a week later, the complaint against Sony was not. In that complaint, Zenbu alleges misappropriation and conversion of its songs by Sony’s Music Unlimited service, which delivers streaming content to PlayStation and mobile users. What’s more, the complaint purports to be a class action—we might very well see other aging musicians join suit against Sony, seeking redress of what they feel is an oversight in the copyright regime. It might even result in pre-1972 sound recordings being removed from streaming services, if the required royalties end up prohibitively high. Continue reading