Sirius XM Fends Off Turtles' Recordings Suit in Florida

But Southern District of Florida federal Judge Darrin Gayles noted: “Neither Florida legislation nor Florida case law answers the question of whether Florida common law copyright includes an exclusive right of public performance.” Because of this lack of precedent, he did not want to create a new property right in Florida, a task he said should be left to the state legislature.

Judge Gayles added: “Indeed, if this [c]ourt was to recognize and create this broad right in Florida, the music industry ' including performers, copyright owners, and broadcasters ' would be faced with many unanswered questions and difficult regulatory issues including: 1) who sets and administers the licensing rates; 2) who owns a sound recording when the owner or artist is dead or the record company is out of business; and 3) what, if any, are the exceptions to the public performance right.”

The Florida federal court also dismissed Flo & Eddie's claims of unfair competition, conversion, and civil theft.

Zoe Ferguson writes for The American Lawyer, an ALM sibling of Entertainment Law & Finance. Senior Writer Susan Beck contributed to this article.

After several defeats, Sirius XM Radio won an important ruling in its ongoing legal battle with the '60s rock band The Turtles. On June 22, a Florida federal judge ruled that Flo & Eddie Inc., a company formed by The Turtles' founders, couldn't ban the radio company from playing the artists' music without their permission. Flo & Eddie Inc. v. Sirius XM Radio Inc., 13-23182.

Flo & Eddie Inc., founded by Turtles band members Howard Kaylan and Mark Volman, filed a purported class action in Florida against Sirius in September 2013. Flo & Eddie also filed two identical suits in New York and California. Though federal copyright law doesn't cover performance rights to sound recordings made before 1972, when The Turtles' recordings were made, Flo & Eddie convinced federal judges in California and New York that they have a protectable right of public performance in them. Last month, the California judge certified a class of owners of recordings made before 1972. (District Judge Philip Gutierrez authorized a class that includes all artists that own pre-1972 sound recordings that Sirius XM has aired without authorization on or after Aug. 21, 2009.) Flo & Eddie Inc. v. Sirius XM Radio Inc., 13-5693 (C.D.Calif.). Meanwhile, in late June, Sirius XM settled a pre-1972 recordings suit brought against it by the major record labels. The $210 million settlement also includes the right for Sirius XM to license the recordings through 2022 at to be determined licensing rates.

California has a specific provision addressing pre-1972 recordings; the New York judge relied on previous cases that had addressed common law copyrights. Florida Statute '540.11, which prohibits unauthorized copying of sound recordings, contains an exemption for broadcasters.

But Southern District of Florida federal Judge Darrin Gayles noted: “Neither Florida legislation nor Florida case law answers the question of whether Florida common law copyright includes an exclusive right of public performance.” Because of this lack of precedent, he did not want to create a new property right in Florida, a task he said should be left to the state legislature.

Judge Gayles added: “Indeed, if this [c]ourt was to recognize and create this broad right in Florida, the music industry ' including performers, copyright owners, and broadcasters ' would be faced with many unanswered questions and difficult regulatory issues including: 1) who sets and administers the licensing rates; 2) who owns a sound recording when the owner or artist is dead or the record company is out of business; and 3) what, if any, are the exceptions to the public performance right.”

The Florida federal court also dismissed Flo & Eddie's claims of unfair competition, conversion, and civil theft.

Zoe Ferguson writes for The American Lawyer, an ALM sibling of Entertainment Law & Finance. Senior Writer Susan Beck contributed to this article.