‘Last Case Standing’: Pandora Beats Final Lawsuit Over Pre-1972 Songs

More than nine years after members of the 1960s rock band The Turtles filed a series of groundbreaking lawsuits over the legal protections for so-called pre-1972 sound recordings, a federal judge has now dismissed their final case — a lawsuit against Pandora that he called the band’s “last case standing.”

In a decision issued Wednesday, Judge Philip Gutierrez ruled that the Sirius XM-owned Pandora had not violated California state law by streaming the band’s songs, like the iconic 1967 cut “Happy Together,” without permission and without paying sound recording royalties.

In doing so, the judge recounted the decade-long story of how the two founders of the Turtles (Howard Kaylan and Mark Volman, legally Flo & Eddie Inc.) filed such cases against music services in courts around the country — and how they had lost in every one of them.

“This case is one of many lawsuits brought by Flo & Eddie, seeking to hold internet and satellite radio services liable for the unauthorized public performance and reproduction of its sound recordings that were fixed prior to February 15, 1972,” the judge wrote. “Flo & Eddie’s action against Pandora is the last case standing.”

The Turtles first sued SiriusXM and Pandora in 2014, claiming that both companies (they later merged in 2018) had been illegally refusing to paying royalties for pre-1972 songs. That was a legal gray area at the time, since songs prior to that year had not been covered by federal sound recording copyrights. But the Turtles claimed pre-1972s could still be covered by state-level laws aimed at preventing misappropriation.

Initially, the band won a key ruling in California federal court, finding that California state law contained a so-called public performance right that would require services like Sirius and Pandora to start paying up. But then, slowly but surely, courts around the country — first the top court in New York, then the Florida Supreme Court, then a federal appeals court in California — ruled no such right existed.

“One after another, federal circuit courts and state Supreme Courts answered with a resounding ‘no’,” Judge Gutierrez wrote in Wednesday’s ruling.

In some ways, Wednesday’s ruling is anti-climactic. The larger issues raised by the Turtle’s pioneering lawsuits — whether the owners of a vast swath of American recorded music were entitled to a new revenue stream from services like SiriusXM and Pandora — were largely rendered moot by the passage of the federal Music Modernization Act in 2018. Among other major changes, that law required such royalties to be paid for pre-1972 records, ending the state-level ambiguity that drove the Turtles to sue.

But Judge Gutierrez had previously ruled that the MMA’s new requirements did not apply to pending lawsuits, meaning that the band still could have won a ruling forcing Pandora to hand over unpaid royalties from the years before the MMA’s enactment.

Barring a successful appeal, Wednesday’s ruling foreclosed that possibility: “The court grants Pandora’s motion for summary judgment. This order closes the case.”

In seeking to revive their lawsuit against Pandora, the Turtles argued that, even if no public performance right existed under California state law, the streamer had still violated their so-called reproduction right by illegally copying their music to make it available on the service. But those “repackaged” claims had also been rejected by the other courts, Judge Gutierrez wrote.

“Even if the Court would like to independently consider these claims, its ‘hands are tied,’” the judge wrote. “In the absence of an exclusive right to publicly perform its pre-1972 sound recordings, Flo & Eddie has no viable copyright claim against Pandora.”