Supplement to the and San Francisco

MARCH 15, 2017 THE 2017 CLAY AWARDS The 21st Annual Lawyer Attorneys of the Year ENVIRONMENTAL Giving artists royalties for pre-1972 recordings route” after September 2014 when Flo & Eddie Inc. v. Sirius XM Radio Inc. U.S. District Judge Philip S. Gutierrez of Los Angeles extended California copyright protection of performances of so-called “oldies” sound record- ings. “This settled the ambiguity in the law by explicitly holding that the older songs are protected by state law,” Gradstein said. Five major record labels, Capitol Records LLC, Sony Music Entertain- ment, UMG Recording Inc., Warner Music Group Corp. and ABKCO Mu- sic & Records Inc., that control about 85 percent of the oldies, then entered into a $210 million settlement agree- ment with Sirius in mid-2015. “The labels relied on our work,” Gradstein said. “We got nothing.” But Gutierrez had established li- STEVEN G. SKLAVER ability and certified a class. Grad- of Susman Godfrey LLP stein enlisted Susman Godfrey and proceeded with damages claims on behalf of the individual clients, in- cluding Flo & Eddie. Sirius lost its bid to decertify the class and was barred from arguing any defenses to liability, the judge ruled. HENRY GRADSTEIN and MARYANN MARZANO of Gradstein & Marzano PC. In November, on the eve of trial, as Sirius faced the prospect of a ju- ry’s damages finding, the defendant he Turtles sang in their 1968 hit paying for them,” Gradstein said. settled. The deal included a future “,” “Gee I think you’re “The defense theory was that the running royalty of 5.5 percent of Tswell/And you do me really Copyright Act doesn’t cover pre-1972 pro-rata Sirius gross revenues from well…” But that was hardly the leg- works, and that is a fact. But I be- 2018 through 2028 from playing endary rock band’s attitude toward gan researching the states’ common class members’ sound recordings in those who played their music but re- law copyright statutes. In California exchange for a license to play them. fused to pay royalties. there is a statute arguably right on Gradstein has a similar case pend- Taking on as clients pre-1972 song point in the civil code. It says the au- ing against Pandora at the 9th U.S. owners including ’ found- thor of a recording has the exclusive Circuit Court of Appeals on whether ers Flo & Eddie — in real life Howard right to exploit it. And other states the performance of the pre-1972 per- Kaylan and Mark Volman — against have good case law as well.” A 1937 formance involves First Amendment KALPANA SRINIVASAN a powerful defendant, East Coast case dealing with band issues. of Susman Godfrey LLP Henry D. Gradstein of Gradstein & and choral group Fred Waring and Marzano called the result “the Marzano LLP, prevailed in a land- the Pennsylvanians was also useful. culmination of a battle Henry and I tance to pursue this case.” mark class action. Gradstein, with Gradstein also found a relevant 1973 started almost four years ago and con- Said Srinivasan, “I was all set to law partner Maryann R. Marzano and U.S. Supreme Court case. Goldstein tinued to wage with Susman Godfrey give the open at trial. I was excited Susman Godfrey LLP class action v. California, 412 U.S. 546, held that at our side. Over the course of what to tell their story, but [the settlement] specialists Kalpana Srinivasan and California laws criminalizing record was to become an epic David versus was an emotional victory and I was Steven G. Sklaver, won a $25 million piracy did not violate the U.S. Consti- Goliath fight, we remained true to our so glad for the class.” Added Sklaver, Central District settlement that could tution’s Copyright Clause. mission to uphold the law protecting “It took the threat to the defendants balloon depending on cases pend- “The law was pretty clear,” Grad- artists’ performance and other rights to achieve the settlement. It was the ing in other states. Flo & Eddie Inc. stein said. “The hard part was con- and to ensure that artists were fairly genius of Henry and our collaborative v. Sirius XM Radio Inc., 13-cv-5693 vincing judges that state law did in- compensated for the fruits of their la- work for the class to arrive at a settle- (C.D. Cal., filed Aug. 3, 2013). deed provide these protections.” bor. In our current climate, where it ment meaningful for our clients and “It wasn’t fair that Sirius XM was The case took what Gradstein is a struggle for musicians to earn a for us as lawyers.” playing pre-1972 recordings without called “a circuitous and labyrinthine living, it was of great societal impor- — John Roemer Reprinted with permission from the Daily Journal. ©2017 Daily Journal Corporation. All rights reserved. Reprinted by ReprintPros949-702-5390