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Thursday, September 25, 2014

The Turtles and the Airwaves ► A Modern Day Fable

Mark Volman and Howard Kaylan aka Flo & Eddie
Remember Aesop's fable of The Tortoise and the Hare? The moral of that story: slow and steady wins the race, especially against a tricky opponent. Today's Fable Du Jour, kiddies, is how The Turtles, of Happy Together fame, won a huge lawsuit against SiriusXM, a decision that will have profound effects on Show Bidnezz. 


So, gather 'round children and stop fidgeting. I call this modern day fable, "The Turtles and the Airwaves." It also has tricky adversaries, but ends with the same moral: one step at a time will get you there, especially if you can outwit your protagonists. However, because it's updated for the 21st Century, this race ends in a courtroom, not a finish line. 

But first, a word from our sponsor:


Our story begins all the way back in the last century, in the '60s, when a bunch of teenagers with a wacky dream started a Rock and Roll band. Call them The Turtles because that's what they called themselves, after changing their name from The Crossfires when they signed a recording contract. Because they were young and stupid, the contract they signed with White Whale Records would come back to kick them in the ass later.

But that was all in the future. As the '60s progressed, The Turtles delivered on their end of the bargain, recording Top Ten hit after Top Ten hit. However, The Turtles were pretty much all that was keeping White Whale afloat. It already had serious financial troubles and no other hit-makers. The company pressed Volman and Kaylan, the lead singers of The Turtles, to dump the rest of the group and tour with a pick-up band. It also wanted the Mark and Howard to just add their voices to backing tracks and tunes cut by other musicians. Eventually the White Whale went belly up, which is when that crazy contract reared its clause. [Geddit?]

When they were too young to know any better, and just wanted to make music, Volman and Kaylan had not only signed away the rights to the Turtles name, but had actually signed away the right to use their own names. In one of the most Kafkaesque chapters in the entire Kafkaesque history of Rock and Roll, Mark Volman and Howard Kaylan were prevented from calling themselves Mark Volman and Howard Kaylan.
That's when Flo & Eddie (originally The Phlorescent Leech and Eddie, but shorted to a pun; rivers can both flow and eddy) were born. Prevented from using their own names, Flo & Eddie joined Frank Zappa's band and recorded several LPs with him, as well as appearing in the movie "200 Motels."

FULL DISCLOSURE: I've been a Frank Zappa fan since Freak Out was a new LP. I saw it at my local Kresge's and it was the ugliest band I had ever seen in my life. I bought the 2-record set and played it for hours on end while I poured over the crazy graphics and liner notes. That's why I could quote from memory certain passages printed inside the gatefold cover, including:
"I'd like to clean you boys up a bit and mold you. I believe I could make you bigger than The Turtles."
~~~~~A NOTED L.A. DISC JOCKEY
The irony of those words were not lost on me when I learned Mark Volman and Howard Kaylan had joined Frank Zappa and the Mothers of Invention. Over the years Zappa had many amazing musicians in his band, but the short-lived Flo & Eddie Years have always been my favourite Zappa era. 

TANGENT OVER

Flo & Eddie released several records under that name and, along the way, provided back up vocals to T. Rex, Alice Cooper, and Bruce Springsteen, among others. And, as improbable as this sounds after their scatological residency with Zappa, provided music for The Care Bears and Strawberry Shortcake. As well, Volman & Kaylan litigated the White Whale issues, eventually winning the right to not only use the name The Turtles, but their own names as well, hence the billing The Turtles featuring Flo & Eddie.

However, life is a marathon. The next leg in this race came in 1974, when White Whale's assets were sold at auction to satisfy creditors in bankruptcy. When the hammer came down Mark Volman and Howard Kaylan had bought full ownership of all their old recordings, making them a rarity in the music biz: the workers owning the means of production.That's when they were able to start re-releasing The Turtles music, either in original form or on Greatest Hit packages; a cottage industry that continues to this very day.

And, that's where this Fable Du Jour really begins: Remember how stupid the boys were that they signed away their own names? [See above.] They've learned a lot in 5 decades. Especially, Mark Volman, who is also known these days as Professor Mark Volman. According to the WikiWackyWoo:
[A]t age 45 he started his bachelor's degree at Loyola Marymount University. Volman graduated with a B.A. degree in 1997 Magna cum Laude and was the class valedictorian speaker. During the speech he led the graduates in a chorus of "Happy Together". CBS Evening News covered Volman's graduation and interviewed his parents who were perplexed at their son's academic accomplishments.[1]

Volman went on to earn a Master's degree in Fine Arts with an emphasis in screenwriting in 1999 also from Loyola. Since that time, he has taught Music Business & Industry courses in the Communications and Fine Arts department at Loyola. He has also taught courses in the Commercial Music Program at Los Angeles Valley College. He is currently an Associate Professor and Coordinator of the Entertainment Industry Studies Program at Belmont University in the Mike Curb College of Entertainment and Music Business and conducts seminars about the music industry for various academic institutions from junior high school to University level. In addition, he offers consulting on music business and entertainment through the website Ask Professor Flo.[2]
With no personal knowledge whatsoever, I suspect Volman was the partner who figured out SiriusXM was ripping them off. [To be fair: If you're working in the music business it's a good bet that somebody's ripping you off.] Last year Flo & Eddie, Inc. launched a $100,000,000 lawsuit against SiriusXM, arguing that the company was not compensating them for playing recordings made before 1972. SiriusXM argued it didn't have to.The judge said, "Hold on there, Buckaroos."

Copyright law is complicated. Musical copyright law even more so. Long story short: Essentially, musical recordings made before 1972 did not get copyright protection when the federal copyright law was drafted and passed. Therefore, pre-'72 recordings could be played on SiriusXM stations without having to pay compensation. Flo & Eddie, Inc. argued that California's 1982 copyright law -- which allowed payments for such use -- should take precedence.

Long story even shorter: U.S. District Judge Philip Gutierrez agreed with Flo & Eddie's lawyers and granted summary judgement against SiriusXM. [On anther issue, concerning music copied onto servers and provided on-demand, the judge wanted to hear further arguments.]

Owning their own recordings also means that
The Turtles can put out boutique items, like this
recently released vinyl set of 45 RPM singles,
recreating the original sleeves and record labels.

You can get one of your very own HERE.
There's no downplaying how big this judgement is. The Hollywood Reporter called it a "crushing loss" in a "high stakes battle" in its Headline Du Jour and "legal earthquake" in the lede. Eriq Gardner goes on to say:
But overall, this is a whopping ruling with consequences almost impossible to overstate. In the short term, the ruling will likely be appealed as the plaintiffs eye a trial that will determine the awarding of damages. In the long term, it could compel SiriusXM, Pandora and many in the tech industry to strongly lobby Congress for new copyright laws that cover pre-1972 recordings. The ruling also will — or should — be read closely by other businesses including terrestrial radio operators and bars that publicly perform older music.

SiriusXM is facing another lawsuit from the RIAA in California as well as more lawsuits from Flo & Eddie in other states. Pandora is also facing a lawsuit by record labels in New York. And the ruling potentially opens the floodgates to more litigation on the issue of pre-1972 music.
This ruling applies to so much of the music that was recorded prior to 1972. And, it could change the entire business model of music streaming companies like Spotify and Pandora. However, kids, this fable is not about Pay Radio, or streaming services, or even multi-million dollar judgements. This is the story of how two Turtles, putting one foot in front of the other for the last 49 years, managed to outwit one of the biggest media companies in the planet and win one of the biggest races ever run.

And, it couldn't happen to two nicer guys.