Turtle Power: The Case for Common Law Protection for Pre-1972 Sound Recordings

Abstract

This Note surveys the landscape of state law protection for pre-1972 sound recordings (which are not covered by the federal Copyright Act) in the context of the varying approaches courts have taken to lawsuits that ex-members of the 1960s pop group the Turtles have filed in recent years against satellite and internet broadcasters seeking compensation for the broadcasters' public performances of pre-1972 Turtles recordings without permission or payment. In the absence of Congressional action granting pre-1972 recordings some measure of protection under federal copyright law, this Note argues that the most sensible judicial solution for the three circuit courts currently considering the issue would be to rely on common law unfair competition and misappropriation doctrine, rather than state statutory or common law formulations of copyright, to afford pre-1972 recording owners limited remedies to compensate for unauthorized commercial uses of their recordings.