In a unanimous October 26, 2017, decision, the Supreme Court of Florida concluded that Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings. Thus, members of the band, The Turtles, had no basis for the royalties sought in their dispute with satellite and internet radio provider Sirius XM. In June, the US Court of Appeals for the Eleventh Circuit had certified to the Supreme Court of Florida the question of whether common law copyrights under Florida law protected sound recordings fixed prior to February 15, 1972. In answering no, the justices looked to the federal and Florida legislative history to rule on this question of first impression.

Background

This case is one of several around the country brought by Flo & Eddie, members of the band, The Turtles, against the satellite and internet radio provider Sirius. Flo & Eddie were seeking royalty payments for Sirius broadcasts of several of the band’s recorded performances. Because each of these public performances of Turtles’ recordings was fixed prior to February 15, 1972, before the effective date of protection under the Copyright Act of 1976, they enjoy copyright protection, if at all, only under state law.

The Supreme Court of Florida clarified that the dispositive question of the four questions identified by the Eleventh Circuit was “[d]oes Florida common law recognize the exclusive right of public performance in pre-1972 sound recordings?” As acknowledged by both the Supreme Court and the Eleventh Circuit, Florida courts had not previously addressed the issue in any prior litigation.

Federal Music Copyright Scheme

Since 1832, Congress has extended copyright protection to the owner of a musical composition itself. Since 1909, that copyright protection has included the exclusive right of public performance. Over the course of several decades, Congress repeatedly declined to provide any form of separate copyright protection for sound recordings. Not until 1971 did Congress finally extend federal protection to sound recordings. Even then, the protection applied only to post-1972 recordings, was only a protection against piracy, and it did not grant the owner an exclusive right of public performance.

In 1976, Congress enacted sweeping amendments bringing nearly all of copyright law under federal purview. Still, it left statutory or common law protections for all pre-1972 sound recordings to the states. It would not be until the Act of 1995 that Congress would finally grant a limited right of public performance to sound recordings. That right only applied to the public performance of post-1972 sound recordings “by means of a digital audio transmission.” Accordingly, the Court noted that “federal copyright law has long distinguished the right of public performance from the right of reproduction,” and Congress has repeatedly declined to recognize any right of public performance for any sound recordings. 

Florida’s Legislative History

While no case law existed on point, the court noted that the Florida Legislature had addressed the issue of copyrights for sound recordings on several occasions in response to congressional amendments to the federal laws and case law emanating from other jurisdictions. In 1941, the Florida Legislature enacted legislation that dictated that the public sale of a sound recording extinguished any asserted common law rights that further restrict the commercial use made of that recorded performance. Thirty years later, Florida enacted a record piracy criminal law which maintained the 1941 common law restrictions. In 1977, shortly before the effective date of Congress’ 1976 Act, the Florida Legislature repealed the common-law-divestiture provisions previously enacted.

Florida’s History of Legislation

Flo & Eddie argued that the Florida Legislature’s repeal of the common law divestiture provisions clearly indicated the existence of an exclusive right of public performance for pre-1972 sound recordings, and that such an interpretation was supported by the case law. The court disagreed. 

The court reasoned that if, as Flo & Eddie argued, the exclusive right of public performance had existed all along under the common law, “then one would have to conclude that Congress actually took away that common law right for post-1972 recordings, on a going-forward basis, when enacting the Act of 1971, and then, that Congress only partially restored that right when enacting the Act of 1995—an act that recognized the right of public performance in post-1972 recordings, but only in the context of digital transmissions.” 

Instead, the court explained, the Florida legislation actually “was designed to prevent common law from developing in Florida that would have recognized [an] exclusive right of public performance for sound recordings.” The court distinguished the extraterritorial case law cited by Flo & Eddie and cautioned that recognizing the rights Flo & Eddie sought “would have extensive and far-reaching consequences that would upset settled expectations and impact the many competing interests at stake.” 

Conclusion

The court’s conclusion that the Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings is consistent with findings in New York, where the state’s highest court reached the same conclusion last year. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 70 N.E.3d 936 (N.Y. 2016). The ruling forecloses artists from seeking royalties related to the public performance of these pre-1972 sound recordings under Florida law, confirming their place in the public domain.

Flo & Eddie have a similar proceeding pending in the Ninth Circuit, pending a ruling from the California Supreme Court. Flo & Eddie, Inc. v. Pandora Media, Inc. (9th Cir. Appeal No. 15-55287) (Cal. Sup. Ct. Appeal No. S240649). 

Assuming the same result in New York, Florida and California, pre-1972 recordings will effectively be in the public domain in the United States. If the Supreme Court of California reaches a different conclusion, the market for public performance of these recordings will remain unsettled, and possibly be subject to future legislation.

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