Flo & Eddie Lose in Florida but California Supreme Court Still to Weigh in Regarding Pre-1972 Sound Recordings

There are some significant ways in which federal copyright law treats sound recordings differently from musical compositions. For instance, one significant way that sound recordings are treated differently under federal copyright law is that federal law does not provide creators of sound recordings with an exclusive right of terrestrial broadcast. This principle of U.S. copyright law has been the subject of coverage recently in connection with the proposed Fair Play Fair Pay Act, which, among other things, seeks to amend federal law in order to provide such a right. But another interesting aspect of the U.S. legal regime is that sound recordings created prior to February 15, 1972 are not even protected under federal copyright law. The practical effect of this is that anyone seeking to enforce rights in a pre-1972 sound recording must look to state law as a source of those rights. 

And indeed, that's what former members of the Turtles (Howard Kaylan and Mark Volman, owners of Flo & Eddie, Inc.) have been doing for the past several years. Flo & Eddie have asserted various state law claims (in different states), and next the California Supreme Court will weigh in on the matter. The issue is significant because, for example, for recordings created after February 15, 1972, satellite and internet radio providers must generally secure two licenses, one for the applicable musical composition and one for the applicable sound recording, so this issue concerns whether that second license is actually required for pre-1972 recordings. In addition, even terrestrial broadcast of pre-1972 sound recordings has been the subject of litigation. 

Last month, the Supreme Court of Florida ruled against Flo & Eddie in a case involving Florida state law and Sirius XM (a satellite and internet radio provider). In the case, Flo & Eddie claimed that Sirius XM's broadcasting of the sound recordings at issue constituted unauthorized pubic performances, and that Sirius XM's backup and buffer copies constituted unauthorized reproduction. Flo & Eddie asserted the following four causes of action under Florida state law against Sirius XM: (1) common law copyright infringement; (2) common law misappropriation and unfair competition; (3) common law conversion; and (4) civil theft. In that case, the Florida Supreme Court, which had been certified to answer the relevant questions by the 11th Circuit Court of Appeals, said the case turned on whether or not Florida recognizes a public performance right. The court then went on to hold that Florida state law does not recognize an exclusive right of public performance in pre-1972 sound recordings, and that all of Flo & Eddie's claims failed. 

Earlier this year Flo & Eddie lost a similar battle but under New York state law. In that case, which began in the United States District Court for the Southern District of New York, Flo & Eddie was alleging, under New York state law, common law copyright infringement and misappropriation. Specifically, Flo & Eddie alleged that Sirius XM had infringed Flo & Eddie's copyrights by broadcasting and making internal buffer copies of the recordings at issue. However, the New York State Court of Appeals ultimately declined to recognize a public performance right for creators of pre-1972 sound recordings, and remanded the case back to the 2nd Circuit Court of Appeals. The 2nd Circuit Court of Appeals then ordered the U.S. District court to dismiss the case, finding in favor of Sirium XM on Flo & Eddie's remaining claims, noting that such claims ultimately rested on whether or not there was a public performance right under NY law for creators of pre-1972 sound recordings (a question that was answered in the negative by the New York State Court of Appeals).    

The California Supreme Court is also set to weigh in on a matter concerning Flo & Eddie and public performance rights in pre-1972 sound recordings. The lawsuit at issue was filed by Flo & Eddie against online radio service Pandora in the Central District of California. Note that in similar, earlier litigation (with the same judge), Flo & Eddie prevailed at the district court level against a different party (Sirius XM) on the issue of public performance rights, but the parties settled right before the commencement of a trial to set damages. In the current Pandora matter, after the district court judge denied Pandora's anti-SLAPP motion, Pandora appealed the denial to the Ninth Circuit. The Ninth Circuit then certified the following two questions to the California Supreme Court: 

1. Under Section 980(2) of the California Civil Code, do copyright owners of pre-1972 sound recordings that were sold to the public before 1982 possess an exclusive right of public performance?

2. If not, does California's common law of property or tort otherwise grant copyright owners or pre-1972 sound recordings an exclusive right of public performance?

The matter was recently added to the California Supreme Court docket but it will be over a year before the court is expected to rule on the matter. However, the questions at issue are significant, and the ruling in California is going to be a consequential one. 

Finally, note that there has been some recent federal effort to address this issue. Specifically, the proposed CLASSICS Act would require that direct or statutory licenses be obtained for digital audio broadcast of pre-1972 sound recordings (and would pre-empt state litigation regarding the matter). It's worth noting, however, that the the Act does not speak to terrestrial broadcast of such sound recordings, which is something that a different currently proposed act (The Fair Play Fair Pay Act) would address by amending federal law to provide to sound recording owners an exclusive right of public performance for any audio transmission (not just digital transmissions).