SiriusXM Wins Appeal Over Pre-1972 Sound Recordings in Florida

According to the Florida Supreme Court, the state has never recognized an exclusive right of public performance in sound recordings.
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SiriusXM continues to make a comeback on a legal topic that at one point seriously threatened the satcaster and others. On Thursday, the Florida Supreme Court came to the conclusion that Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings. The decision gives SiriusXM some relief from litigation brought by Flo & Eddie of The Turtles.

The controversy over older sound recordings exists in part because when Congress chose to bring sound recordings within the purview of the Copyright Act, it chose not to preempt state protections for pre-1972 recordings. In other words, the owners of sound recordings could potentially use state misappropriation laws to sue whenever their works were broadcast. For decades, no legal action was taken against radio operators, bars, restaurants, sports stadiums and others, but then, in late 2013, Flo & Eddie brought a series of putative class actions against SiriusXM in California, Florida and New York.

Flo & Eddie subsequently tasted success in California and New York. The major labels sued SiriusXM, too. 

This culminated in settlements for SiriusXM — $210 million to the major labels and a complicated deal worth up to $99 million for the indies led by Flo & Eddie. The latter settlement, however, allowed the appellate courts to explore the issue of whether the performance of pre-1972 recordings were really protected under various state laws. If SiriusXM won, they'd get a discount on the settlement as well as enjoy some relaxation with regards to future liability.

Last December, the New York Supreme Court came back with an answer that its common law doesn't protect public performance rights. SiriusXM then won summary judgment at the 2nd Circuit.

Now, Florida is following the same course after having the issued certified by the 11th Circuit Court of Appeals.

Florida Supreme Court Justice Charles Canaday writes the opinion that explores both legislative developments and case law to come to the conclusion that Florida simply never recognized a common law right of performance in sound recordings despite Flo & Eddie's arguments to the contrary. Legislators in the state may have addressed sound recording rights by abolishing protection of public performance at one point and then repealing the abolishment, but according to Canady, that doesn't mean performance rights existed in the first place. And even if did, revesting Flo & Eddie with rights would be problematic.

"For example, a finding that a pre-repeal purchase of, say, 'Happy Together' could continue to be freely played in public while a post-repeal purchase of that same recording was subject to licensing and royalty payments would be illogical and unworkable," he writes. "But of course, Florida common law has never recognized an exclusive right of public performance in sound recordings."

The opinion (read here) also explores the issue of divestment through publication. One of the cases brought up was 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 performance of the trick might have been protected, but the judge back then ruled that because Hoffman had performed his sleight-of-hand tricks before many audiences, any member of the public including Glazer had the right to use it.

"Thus, if anything, Glazer would stand for the proposition that for those 'dramatic composition[s]' or 'intellectual production[s],' that do not rise to the level of being covered by federal copyright law — as was the case with Hoffman’s magic trick, and as was the case in 1943 with respect to all sound recordings — any exclusive right of public performance is lost at the moment of publication. In other words, when phonorecords are commercially sold, the public would obtain the 'lawful right to use' the sound recordings. In brief, Glazer in no way supports the existence of an exclusive right of public performance for pre-1972 sound recordings."

With New York and Florida opining, the California Supreme Court is next to weigh in.

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