In a multi-jurisdictional dispute between a band and a satellite radio provider, the US Court of Appeals for the 11th Circuit adopted reasoning similar to that of the New York Court of Appeals (IP Update, Vol. 20, No. 3) in finding that the band’s copyright infringement claim against the satellite radio provider must fail, since Florida common law does not recognize an exclusive right in public performance in pre-1972 sound recordings. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., Case No. 15-13100 (11th Cir., Jan. 5, 2018) (per curiam).

The decision comes in one of several lawsuits against online music providers filed by Flo & Eddie (members of the band the Turtles) seeking royalty payments for broadcasts of several of the band’s recorded performances (e.g., “Happy Together,” “She’d Rather Be with Me”). Because each of the recordings of the public performances was fixed prior to 1972—before the effective date of protection under the Copyright Act of 1976—they enjoy copyright protection only under state law, if at all.

The 11th Circuit’s decision followed certification of four questions to the Supreme Court of Florida. The dispositive question was, “[d]oes Florida common law recognize the exclusive right of public performance in pre-1972 sound recordings?” Given the absence of supporting Florida case law establishing such a common law right, and finding no legislative equivalent, the Florida court answered the question in the negative.

With the Florida Supreme Court’s guidance on the applicable state law, the 11th Circuit found that Sirius XM did not infringe on Flo & Eddie’s exclusive right of public performance in its sound recordings when Sirius XM played the Turtles’ recordings over the internet and via its satellites. The Florida Supreme Court’s holding also foreclosed Flo & Eddie’s claim of infringement on its exclusive right of reproduction in the sound recordings, as well as claims of unfair competition and misappropriation, common law conversion and statutory civil theft, since all claims relied on the existence of a common law copyright. Thus, the 11th Circuit affirmed the district court’s 2014 decision in Sirius XM’s favor.

Practice Note: Recent decisions from the Second and 11th Circuits effectively place pre-1972 recordings in the public domain in those jurisdictions. If the pending dispute in California between Flo & Eddie and Pandora Media reaches a different conclusion, the market for public performance of these recordings may remain unsettled and possibly subject to future legislation.