Flo & Eddie, Inc. v. Sirius XM Radio, Inc .

Robert H. Thornburg, July 1, 2015

Judge Darrin Gayles of the Southern District of Florida recently ruled against Flo and Eddie, which owns the rights to The Turtles master recordings. The Turtles is the band behind the 1967 hit “Happy Together.

In their action against Sirius XM Radio, Flo and Eddie claimed their property rights had been violated through Sirius’s broadcasting of their music because it constituted a public performance and through back up and buffer copies unauthorized reproductions were being made. Flo and Eddie also filed nearly identical actions in both California and New York Federal Courts. In each of the two previous actions it was found that California and New York law provided protection for public performance of a sound recording.

One important thing to note about this case is that it involves sound recordings and not musical compositions. A sound recording is considered the aggregate of the sounds captured during the recording process, and under the Copyright Act of 1909, only musical compositions were protected, not sounds recordings. It was not until 1971, when Congress amended the Copyright Act, that sound recordings became entitled to federal copyright protection. Thus, pre February 15, 1972 sound recordings (including The Turtles 1967 hit Happy Together) are governed by state law for copyright protection. Since Florida does not have any statutes directly addressing sound recording property rights, Judge Gayles had to look to Florida common law to decide the case.

Unlike New York and California, which have statutes and well developed case law regarding property rights and the arts, Florida does not have an extensive body of case law interpreting common law copyright. This makes sense considering both California and New York are two of the traditional creative centers in the United States for music. Because Florida has no authority on point to give rise to an exclusive right of public performance, Judge Gayles could not accept Flo and Eddie’s position Florida common law copyright must include an exclusive right of public performance.

In support of his ruling Judge Gayles cited issues that would be associated with the judicial creation of such a right. These issues included who would set and administer licensing rates, who would own the recording when the original copyright owner died or a recording company went out of business, and what the exceptions to the public performance right should be. Because of these unsolved issues, and the legislature’s traditional role of addressing them, he opined the Florida legislature would be most suited to tackle them.

With respect to the unauthorized reproduction of the sound recording through buffer and back up copies, Judge Gayles determined they were not unlawful reproductions. This was in large part because none of the copies maintained by Sirius were accessible to the public. The buffer copies were also not full-length versions of the songs (they ranged from a millisecond to twenty seconds long) and served as technological necessities for satellite broadcasting.

In short, Florida does not have common law copyright protection for an exclusive right of public performance, and buffer copies created to aid the transmission of a recording do not count as an unlawful reproduction. The Florida legislature would need to enact a statute to give artist of pre 1972 sound recordings an exclusive right of public performance.

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