The Turtles performing "Happy Together" on "The Ed Sullivan Show" in 1967. (Photo via Wikipedia.)
Sirius XM Radio Inc. has agreed to settle a closely watched copyright infringement case brought by two members of the 1960s band The Turtles that was set to go to trial on Tuesday in California.
Terms of the settlement, including the amount, were undisclosed, but in a notice filed on Monday, lawyers wrote that they planned to file a motion for preliminary approval on Dec. 5. Both sides are due in court on Tuesday to schedule a hearing for the settlement's approval. Last year, Sirius paid $210 million to settle claims by several major record labels, some of whom were members of the class in the California case.
Plaintiffs' attorneys Henry Gradstein, a partner at Gradstein & Marzano in Los Angeles and Kalpana Srinivasan, a partner at Susman Godfrey in Los Angeles, did not respond to a request for comment. Both represent Mark Volman and Howard Kaylan, two band members of The Turtles, whose hit songs include "Happy Together." They brought the case under the corporate name Flo & Eddie Inc. Sirius attorney Daniel Petrocelli, chairman of the trial practice committee at O'Melveny & Myers, also did not respond to a request for comment.
The planned trial revolved around how much Sirius should pay to a class of thousands of owners of sound recordings made prior to 1972. Those recordings are not covered under the U.S. Copyright Act, but Volman and Kaylan have been suing under state laws in California, Florida and New York.
So far, they've had mixed results: A federal judge in Florida granted Sirius's summary judgment, prompting the band members to appeal to the U.S. Court of Appeals for the Eleventh Circuit, while the New York Court of Appeals is weighing the state's law in a case in which Sirius has sought reversal of a federal judge's denial of summary judgment. In California, The Turtles band members sued in 2013, claiming conversion, misappropriation violations of California's unfair competition law and a California law governing "exclusive ownership" of sound recordings.
In 2014, U.S. District Judge Philip Gutierrez granted summary judgment to the band members on liability after finding that the California law protected their public performance rights for songs recorded prior to 1972. Last year, Sirius appealed Gutierrez's subsequent order certifying a nationwide class, but the U.S. Court of Appeals for the Ninth Circuit refused to take up the petition.
In September, Gutierrez granted partial summary judgment to Sirius, striking punitive damages and the unfair competition claims from the case. The plaintiffs, who initially sued for more than $100 million, hadn't sought a specific damages request for trial. But in briefs filed last week, both sides appeared at odds over how to calculate potential damages.
In September, Gutierrez also denied a request from Petrocelli to move this month's trial to January given that he represents President-elect Donald Trump in another class action brought by former Trump University students that goes to trial on Nov. 28. Petrocelli has filed a motion to delay that trial until after Trump is inaugurated on Jan. 20. 2017.