Here Are 1,400 Songs You Might Never Hear Again on Your Pandora Station

From the Stones’ “(I Can’t Get No) Satisfaction” to Marvin Gaye’s “What’s Going On,” songs recorded before 1972 are the subject of a new copyright lawsuit.

Simpler times: The Beatles perform in November 1963 in Los Angeles.
National Journal
Dustin Volz
April 21, 2014, 9:56 a.m.

Baby boomers wor­ried that the great mu­sic of their youth would be for­got­ten by their kids and their kids’ kids have a new reas­on to fret­fully twist and shout.

Last week, the mu­sic in­dustry sued Pan­dora Me­dia, claim­ing the pop­u­lar In­ter­net ra­dio ser­vice is un­fairly evad­ing pay­ing tens of mil­lions in roy­al­ties on hit tunes re­cor­ded be­fore Feb­ru­ary 1972. Thanks to an ob­scure quirk in the leg­al sys­tem, those pre-1972 oldies are ex­empt from fed­er­al copy­right pro­tec­tion, mean­ing Pan­dora and ser­vices like it don’t need to pay the com­puls­ory li­cens­ing fees re­quired for less-dated mu­sic.

But ma­jor la­bels con­tend that Pan­dora, by not first earn­ing per­mis­sion to play those songs, is vi­ol­at­ing state laws that more gen­er­ic­ally pro­tect in­tel­lec­tu­al prop­erty and should ap­ply to the clas­sic gems of yes­teryear. The la­bels, in­clud­ing Sony, Uni­ver­sal, and Warner Mu­sic, as well as AB­KCO, an in­de­pend­ent that owns many of the Rolling Stones’ biggest hits, have gone to great lengths to il­lus­trate that point.

A list (shown be­low) of more than 1,400 pop­u­lar songs are in­cluded in their law­suit as a “sample” of the pre-1972 songs Pan­dora is al­leged to stream to its users without pay­ing roy­alty fees.

Con­veni­ently, the list in­cludes a des­ig­na­tion next to sev­er­al songs that mark an in­clu­sion in Rolling Stone magazine’s rank­ing of the 500 greatest songs of all time. Un­sur­pris­ingly, a large num­ber of those hits dot the list: Aretha Frank­lin’s thun­der­ous “Re­spect” ( No. 5), Bill With­ers’ re­sur­gent “Ain’t No Sun­shine” (285), an end­less cas­cade of Beatles hits (“She Loves You” at 64, “Yes­ter­day” at 13, “Hey Jude” at 8), Van Mor­ris­on’s “Brown Eyed Girl” (110) and, of course, Bob Dylan’s zeit­geisty “Like A Rolling Stone” (No. 1).

“This case presents a clas­sic at­tempt by Pan­dora to reap where it has not sown,” the suit, filed in New York State Su­preme Court in Man­hat­tan, de­clares. The pre-1972 re­cord­ings, it adds, “con­sti­tute a sig­ni­fic­ant part of the Pan­dora ser­vice and its ap­peal.”

A Pan­dora rep­res­ent­at­ive could not provide pre­cise play num­bers, but said the pre-1972 cata­log rep­res­ents only “a small per­cent­age of over­all spins.” The com­pany said it is con­fid­ent in its leg­al au­thor­ity on the mat­ter.

The suit, which fol­lows on the heels of sim­il­ar com­plaints made last year against Siri­usXM Ra­dio in a Cali­for­nia court, rep­res­ents an ef­fort by the mu­sic in­dustry to cre­ate a new rev­en­ue stream, giv­en that the pop­ular­ity of Pan­dora has ex­ploded in re­cent years, and now tops 70 mil­lion reg­u­lar users.

But a rul­ing against Pan­dora could po­ten­tially have ser­i­ous rami­fic­a­tions on the level of ac­cess to pre-1972 songs, said Dav­id Sun­shine, an in­tel­lec­tu­al-prop­erty law­yer with Cozen O’Con­nor, a law firm based in Phil­adelphia. While com­puls­ory li­cens­ing fees Pan­dora and oth­ers pay on post-1972 works don’t re­quire ob­tain­ing per­mis­sion from the artist, that wouldn’t be true for pre-1972 songs pro­tec­ted un­der the “Wild West of state law,” Sun­shine ad­ded, though he noted such an out­come was prob­ably un­likely.

“The prob­lem that [re­cord la­bels] are go­ing to face is, folks haven’t been pay­ing these roy­al­ties for a long time,” Sun­shine said. “You can’t just wake up 40 years later and say, ‘You need to pay me.’ “

Whatever its chances, though, the mu­sic in­dusty will try its best to cash in on your “Mo­town” and “Clas­sic Rock” sta­tions.

{{ BIZOBJ (video: 4886) }}

What We're Following See More »
What the Current Crop of Candidates Could Learn from JFK
2 days ago

Much has been made of David Brooks’s recent New York Times column, in which confesses to missing already the civility and humanity of Barack Obama, compared to who might take his place. In, Jeffrey Frank reminds us how critical such attributes are to foreign policy. “It’s hard to imagine Kennedy so casually referring to the leader of Russia as a gangster or a thug. For that matter, it’s hard to imagine any president comparing the Russian leader to Hitler [as] Hillary Clinton did at a private fund-raiser. … Kennedy, who always worried that miscalculation could lead to war, paid close attention to the language of diplomacy.”

Maher Weighs in on Bernie, Trump and Palin
2 days ago

“We haven’t seen a true leftist since FDR, so many millions are coming out of the woodwork to vote for Bernie Sanders; he is the Occupy movement now come to life in the political arena.” So says Bill Maher in his Hollywood Reporter cover story (more a stream-of-consciousness riff than an essay, actually). Conservative states may never vote for a socialist in the general election, but “this stuff has never been on the table, and these voters have never been activated.” Maher saves most of his bile for Donald Trump and Sarah Palin, writing that by nominating Palin as vice president “John McCain is the one who opened the Book of the Dead and let the monsters out.” And Trump is picking up where Palin left off.