$99 Million: That’s Some Sirius(XM) Cash

SiriusXM has agreed to pay Mark Volman and Howard Kaylan (a.k.a. Flo & Eddie), two original members of The Turtles, and the other pre-1972 song rights owners in their class, at least $25 million as part of a settlement reached earlier this month on the eve of a California federal trial. As The Hollywood Reporter writes, depending on appeals, that figure could rise to $40 million to resolve claims of past misappropriation plus an estimated $45 to $59 million for a future 10-year licensing deal. All together, pending a judge’s approval, SiriusXM could be looking at having to cough up as much as $99 million to independent musicians for the rights to perform “Happy Together” and other classic hits.

As we are all now painfully aware, pre-1972 sound recordings aren’t protected by federal copyright. That’s why Volman and Kaylan sued under various state laws and won summary judgment in 2014 when a California federal judge found SiriusXM’s use of their music violated public performance rights. That $25 million is just the baseline, according to a motion for preliminary approval of the settlement filed Monday. As THR says, “Just how much that needle moves depends on what happens in the 2nd, 9th and 11th Circuits when Sirius challenges its liability. By reserving the right to address the relationship of satellite music to the Commerce Clause, SiriusXM also has an eye on possible review by the U.S. Supreme Court.” SiriusXM could shell out an additional $15 million if Flo & Eddie prevail on appeals in all three states.

As the motion states, “On a per-play basis, the minimum $25 million settlement represents approximately an award of $15.68 per play; the $40 million settlement represents approximately $25 per play. None of these funds revert back to SiriusXM. By any measure, that compensation by itself is an excellent result.”