In a decision this week, the Florida Supreme Court rejected claims by Flo & Eddie (of the 1960s band the Turtles) that there was a common law public performance right in pre-1972 sound recordings in the state of Florida (the opinion is available here). The Florida court, after examining numerous avenues of argument, concluded that the establishment of such a right was a legislative task. A judicial declaration that the right existed would, in the Court’s words, “have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit.” It would also upset settled expectations, as the determination that there was a right would effectively create a sound recording performance right greater than that which has ever been recognized in the US – far broader than the limited right granted under Federal law to cover digital performances of sound recordings. The Court went on to conclude that other claims raised by Flo & Eddie were similarly unavailing. The Court found that any reproductions made in the transmission process by Sirius XM (the defendant in the case) were not entitled to composition as they were transitory and made only for purposes of the transmission, not for public consumption (and as Florida law specifically permitted limited reproductions by radio broadcasters and the Court considered Sirius to fit that definition). And, as there was no violation of any rights of the plaintiffs, the use of the recordings could not constitute unfair competition or conversion.
This case reached the Florida Supreme Court when it was certified by the United State Court of Appeals which was reviewing a District Court decision reaching the same conclusion as did the Florida Supreme Court – that there was no performance right under state law for pre-1972 sound recordings (see our summary of the District Court decision here). The Supreme Court’s decision in Florida is similar to that reached by the Court of Appeals in New York (the state’s highest court), about which we wrote here, determining that there was no NY state law public performance right in pre-1972 sound recordings. As we’ve written many times, pre-1972 recordings are not governed by Federal law, which was only extended to cover reproduction rights in sound recordings in that year, leaving all pre-1972 rights in sound recordings with the states. Georgia and Illinois have reached similar decisions in slightly different cases (see our article here on the Georgia decision). In California, where a District Court found a public performance right in pre-1972 sound recordings, we are awaiting word from its Supreme Court as to whether such rights exist in that state (see our article here on the certification of this question to the California Supreme Court).
Could California decide differently? As the Florida Supreme Court noted, the case in California is slightly different as there is a California statute that creates some sort of undefined property right in pre-1972 sound recordings. So the California court could rely on that distinction to reach a different conclusion – though any such decision would still leave unanswered the myriad of issues that one would think should be handled by a legislative body – how would any royalties that may be due be administered, how much would they be, who would receive them (the labels or the artists or some combination), would there be exemptions from the right (e.g. would bars and restaurants and radio stations all have to pay, or just digital services), and how long does the right exist (could copyright holders reach back to unasserted claims from years past, and could they continue to assert the right into the future until 2067 when these sound recordings become subject to Federal law)? We have already seen other issues arise in California litigation, such as whether digitally remastered copies of pre-1972 recordings are even considered pre-1972 recordings (see our article here).
We will await the California decision to see what’s next in the saga of pre-1972 sound recordings. And there still is the prospect of Federal legislation to Federalize, to some degree or another, these rights (see our article here on the pending Classics Act). So, while the Florida case seems to signal that most states do not find a public performance right under state laws, the last notes of the opera documenting the battle over the rights to perform these recordings may not have yet sounded.