Sirius XM Scores Win As Fed. Court Says No Oldies Performance Right Under Fla. Law

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By Anandashankar Mazumdar

June 23 — Florida state law has no public performance right for pre-1972 sound recordings, the U.S. District Court for the Southern District of Florida ruled June 22.

The ruling deals a blow to the owners of the rights to the 1960s hit recordings by the Turtles in their multi-state legal war against Sirius XM.

Federal district courts in New York and California have found that the owners did have exclusive rights under those states' laws.

But in Florida, the federal district court ruled that there is neither statutory nor case law support for finding a public performance right in pre-1972 sound recordings, which are not protected by federal copyright law.

Creating such a right is a matter for the Florida legislature, the court said.

Nationwide Battle Against Digital Services 

Flo & Eddie Inc. is a corporate entity set up by two original members of the Turtles that owns the rights to the group's master recordings, according to the court decision. The group had several hits from 1965 to 1969, including “Happy Together.”

Sirius XM Radio Inc., which operates the Sirius XM satellite radio service, has been playing Turtles songs along with among many other classic recordings made before 1972.

Federal copyright law protects only sound recordings that were made after 1972. Traditionally, artists and music labels have exercised their rights under state laws—such as contract law and common law copyright principles—to collect royalties for the use of the recordings on radio and other media.

However, Sirius XM—and other services, such as Pandora Media Inc., operator of the Pandora online streaming music service—argued that it could use pre-1972 sound recordings without authorization and without compensating the owners.

As a result, Flo & Eddie has been bringing a series of actions against parties such as Sirius XM and Pandora.

In California, a federal district court ruled that a state statute granted public performance rights to owners of pre-1972 sound recordings.

In the New York action, Sirius XM is appealing a holding that New York case law creates a similar right.

Florida Unlike New York, California 

The situation in Florida, however, “is relatively unique,” the court said, because there was neither a state statute nor judicial precedent to rely upon.

Thus, in this state, Flo & Eddie's claim of rights was based on broad interpretations of state property law.

“Flo & Eddie asserts that Florida broadly defines property, and therefore, Florida common law copyright must encompass an exclusive right of public performance,” the court said. “Flo & Eddie requests an unqualified property right wherein it would control everything related to the performance of the sound recordings, including setting and receiving all royalty rates.”

This was a much broader right than that granted by the Copyright Act to owners of post-1972 sound recordings, the court noted.

The court rejected Flo & Eddie's plea to create such an “unfettered” right in the absence of support from state legislation, concluding that “Florida common law does not provide Flo & Eddie with an exclusive right of public performance in The Turtles' sound recordings.”

As a secondary matter, the court also determined that Sirius XM's buffer and back-up copies were not unlawful reproductions under state common law, noting that they were not accessible to the public and were not kept after they had served their purpose.

The court thus granted summary judgment in favor of Sirius XM on all of Flo & Eddie's claims.

The court's ruling was issued by Judge Darrin P. Gayles.

Flo & Eddie was represented by Heller Waldman P.L., Coconut Grove, Fla. Sirius XM was represented by Weil, Gotshal & Manges LLP, New York.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at

To contact the editor responsible for this story: Tony Dutra in Washington at

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