Florida’s Supreme Court to look at pre-72 copyrights

August 2016

Recorded music


Florida’s Supreme Court will now hear the three year old class action brought by former members of the Turtles after the The 11th U.S. Circuit Court of Appeals on Wednesday certified questions of state law to the Florida Supreme Court i
Howard Kaylan and Mark Volman, known as Flo & Eddie, filed suit in California, New York and Florida against satellite radio operator Sirius XM, arguing that Pre-1972 sound recordings are protected by a patchwork of state and common laws meaning they would need to consent to their recordings being played an should be paid for this. Whilst Flo and Eddie were successful in California and New York, they failed at first instance in Florida, prompting the initial appeal.
In Florida U.S. District Judge Darrin Gayles decided to rule in favour of SiriusXM. The judge said he understood why his judicial colleagues in other states ruled differently, noting that California and New York are creative centres of culture, and laws have been enacted there to protect artistic rights, and there have been prior cases that have touched upon the present controversy. But Judge Gayles said that “Florida is different” saying “There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts.” Declining to fill the void in the state’s legislation Judge Gayles said “If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law”  adding that it’s the job of the Florida state legislature to address the issue, and that a decision to plug te gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right. Judge Gayles also declined to find SiriusXM liable under Florida common law copyright for reproductions of sound recordings in back-up and buffer copies.
The Federal Appellate Court now is asking the State Supreme Court to opine on a number of Florida-specific legal questions, including:
– Does Florida common law recognize copyright claims in “sound recordings”? (Common law evolves from decades of court decisions, rather than laws passed by the Legislature.)
– If so, does widespread popularity and playing of a piece of music cancel out copyright claims in that music?
– Does a back-up or “buffer” copy made by a computer system constitute the unauthorized copying of music?
The appellate court’s opinion added that, as far as it could tell, the closest copyright case had to do with “another type of creative performance: magic tricks” (itself another fascinating topic!): “(T)here is at least a significant argument that Florida common law may recognize a common law property right in sound recordings,” the court said. “Sound recordings, no less than magic tricks, are ‘intellectual productions’ that are ‘created by heavy investments of time and labor.’ “

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