Appeals Court Asks If Sound Recording Rights Can Be Divested Like Magic Tricks

It's the 11th Circuit's turn to wade into the legal fight over the performance of pre-1972 songs.
Paul Familetti

The ongoing legal controversy raging over pre-1972 sound recordings continues to produce mind-bending judicial opinions, and now the 11th Circuit Court of Appeals is weighing in with its own.

In 2013, Flo & Eddie of The Turtles filed several lawsuits against SiriusXM across the country seeking to protect "Happy Together" and other hits under state laws. Under their theory, if they had common law copyrights, that would mean they should be compensated for the public performance despite decades where everyone assumed that radio play rendered no such pay.

Flo & Eddie won big decisions in New York and California, but not in Florida after a district judge there opined that there is no specific Florida legislation covering sound recording property rights.

The dispute then went up to the 11th Circuit Court of Appeals, which on Wednesday followed the 2nd Circuit's lead by certifying the question of whether Florida recognizes a common law copyright to the state's highest court. In doing so, the 11th Circuit noted "there is at least a significant argument that Florida common law may recognize a common law property right in sound recordings."

But that's not what makes the opinion provocative. The 11th Circuit also certified another question.

Circuit Judge R. Lanier Anderson brought up a 1943 decision involving a magician named Charles Hoffman, who sued another musician, Maurice Glazer, for infringing on the performance of a trick where various cocktails and other drinks were poured from seemingly empty shakers and beakers. The case appeared to recognize that Florida confers a common law copyright in the performance of magic tricks, writes Anderson, so sound recordings may be no different.

However, the judge in that 1943 case went onto explain that Hoffman had performed his sleight-of-hand tricks before many audiences since 1935. The conclusion came that the magic trick performance thus qualified as a "publication," and that any member of the public including Glazer had the right to use it.

Anderson writes, "If the rule articulated in Glazer in the context of magic tricks — that there is copyright protection for the performance of the magic trick but that the performance before 'many audiences' amounted to a publication for the purposes of divesting the common law property right in the magic trick — should be extended to sound recordings, there is a significant issue as to whether Flo & Eddie may have lost any common law property in its sound recordings by publication thereof and dedication thereof to the general public."

So the 11th Circuit also wants the Florida Supreme Court to tackle the issue of potentially rights-divesting "publication," too.

Here's the full opinion, which also is certifying a question regarding Sirius' backup or buffer copies as well as whether Flo & Eddie may sue under causes of action including unfair competition and conversion.

The appellate court mania will continue. Earlier this week, in a separate dispute involving CBS Radio, after a California judge ruled that remastered versions get copyrights under federal law and can mean owners of the original can't stop public performance, a notice of appeal was filed to the 9th Circuit. 

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