n a decision issued last month in the ongoing battle waged by former members of the 1960s rock group The Turtles over the scope of copyright performance rights in sound recordings, the Florida Supreme Court concluded that pre-1972 sound recordings are not protected by Florida state law.
The U.S. Court of Appeals for the Eleventh Circuit asked the Florida Supreme Court to interpret Florida state law in connection with the federal lawsuit brought by Flo & Eddie, Inc., the company that owns the master sound recordings of certain musical performances by The Turtles—recordings that are not subject to federal copyright law—against satellite and internet radio provider Sirius XM Radio. Sirius broadcasts Turtles songs to Sirius’s subscribers without paying any royalties to, and without a license from, Flo & Eddie – a practice that Flo & Eddie, for several years, have also sought to invalidate in the New York and California courts.
Flo & Eddie claimed that Sirius’s broadcast of Turtles songs constitutes unauthorized public performances of the sound recordings, and that Sirius’s creation of back-up and buffer copies of the sound recordings constitutes unauthorized reproductions. Because sound recordings created before February 15, 1972 are not protected by federal copyright law, the question of whether “pre-1972” recordings enjoy a public performance right (as post-1972 sound recordings do when digitally transmitted) was certified to the Florida Supreme Court. That court ultimately found that no such right exists.
In its analysis, the Court first discussed federal copyright protection for sound recordings, which first came about in 1971, noting that federal copyright law has long distinguished between the right of public performance and the right of reproduction. The 1971 amendment created a new right to reproduce sound recordings and publicly distribute those reproductions, but did not provide for the exclusive right of public performance. The right of public performance for sound recordings was created by Congress in 1995, but it was only limited to digital performances.
The Court next noted that Florida law similarly has distinguished between reproduction and public performance rights, and concluded that, while Florida has sought to protect illegal reproductions of sound recordings, it has never previously recognized an exclusive right of public performance of such recordings. By way of example, the Court specifically identified a Florida state anti-piracy statute, which addresses and prohibits only the reproduction of sound recordings. The statute carves out an exception for “any broadcaster who, in connection with or as part of a radio, television or cable broadcast transmission, or for the purpose of archival preservation transfers any such sounds recorded on a sound recording.” The recognition of a public performance right for the first time, the Court explained, is a task better suited for the Legislature.
Flo & Eddie is now zero for two on its appeals; the Florida Supreme Court came down in alignment with the New York Court of Appeals, which held that New York common law does not recognize a right of public performance of sound recordings. The Turtles’ potential ability to collect royalties from radio stations and online streamers playing pre-1972 sound recordings now turns on the California Supreme Court’s ruling on this issue in connection with Flo & Eddie’s lawsuit against Pandora. Unlike their New York and Florida cases, The Turtles’ California case against Pandora rests on a California statute that provides “the author of an original work of authorship consisting of a sound recording” a right of “exclusive ownership.” The Ninth Circuit Court of Appeals, like its sister appellate courts, certified the relevant state-law questions to California’s highest state court. Given the difference in state law, California’s Supreme Court could arrive at a different conclusion; however, those policy concerns raised in both the New York and Florida cases—including judicial deference to legislative bodies in connection with complex issues, and the potentially widespread impact of a major change in the law on both known and unknown stakeholders—apply equally to Flo & Eddie’s California lawsuit, and may weigh in favor of California similarly denying a pre-1972 recording public performance right. Should the California Supreme Court decide in Flo & Eddie’s favor, the equally complex question of enforcement will be front and center, particularly given the national (and global) nature of music transmissions, whether via terrestrial radio, satellite, or Internet. Either way, all eyes are on the West Coast awaiting the next twist in Flo & Eddie’s ongoing legal battle.
 Flo & Eddie’s claim against Sirius in California settled before it reached trial, but the settlement amounts are dependent on the results of the various appeals in Flo & Eddie’s many lawsuits.