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.