SiriusXM has won a rare victory over its use of pre-1972 recorded music in the satellite radio broadcasters’ ongoing battle with Flo & Eddie, founders of The Turtles. The musicians filed separate lawsuits in California, Florida and New York in 2013, aiming to use state laws to stop SiriusXM using their sound recordings such as “Happy Together” without paying royalties.
California and New York judges have both favored the argument that state laws protect the public performance of pre-1972 sound recordings in the absence of federal legislation. The Florida judge was last to rule, but has gone the other way: U.S. District Judge Darrin Gayles decided to rule in favor of SiriusXM’s summary judgment motion. The judge said he understands 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 Gayle 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 the Judge 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.
As it currently stands, the 2nd Circuit will be reviewing the New York judge’s decision with the California case awaiting a result, too.
More here http://the1709blog.blogspot.co.uk/2014/09/1972-and-all-that-but-does-turtles-win.html and here http://the1709blog.blogspot.co.uk/2013/08/turtles-probe-murky-soup-of-pre-1972-us.html
Flo & Eddie, Inc., v Sirius XM Radio Inc., et al UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 13-23182-CIV-GAYLES/TURNOFF