In latest ruling in long-running dispute over The Turtles’ pre-1972 sound recordings, Ninth Circuit holds that California’s copyright statute does not recognize right of public performance for sound recordings.

A three-judge panel for the Ninth Circuit held that the “exclusive ownership” of pre-1972 sound recordings conferred by California’s copyright statute does not include the right of public performance. The ruling is the latest development in a series of long-running litigations between Flo & Eddie Inc., the entity holding the rights to music by the rock band The Turtles, and Sirius XM.

Flo & Eddie filed this putative class action suit in California federal court against Sirius in 2013, alleging that the satellite and internet radio company violated its right of public performance for its pre-1972 sound recordings under California’s “copyright statute” (Cal. Civ. Code § 980) by broadcasting those recordings without permission or compensation. Cal. Civ. Code § 980 provides that “[t]he author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein” until 2047, except against those who make “cover” recordings. The district court granted partial summary judgment to Flo & Eddie in 2014 (read our summary of the district court’s decision here), holding that the “exclusive ownership” described in Section 980 includes the right of public performance for pre-1972 sound recordings. Before trial, the parties settled their dispute, but with the amount that Sirius owed for past performances of pre-1972 sound recordings contingent on the outcome of various appeals in the Second, Ninth and Eleventh Circuits in the litigations that Flo & Eddie had brought.

On appeal in this action, the Ninth Circuit reversed the district court’s ruling, holding that the “exclusive ownership” conferred by California’s copyright statute does not encompass an exclusive right of public performance for pre-1972 sound recordings. The Ninth Circuit rejected the district court’s reliance on the dictionary definitions of the words “exclusive” and “ownership” to determine the scope of rights encompassed by the term, explaining that the phrase “exclusive ownership” is a term of art that “cannot be stripped away from its historical context or subject matter area.” Further explaining that “statutes are not presumed to alter the common law unless expressly stated,” the court examined the context-specific meaning of the phrase “exclusive ownership” under the common law as of 1872, the year California’s copyright statute was first enacted.

On this analysis, the Ninth Circuit concluded that “no court as of 1872 had recognized the right of public performance under any nascent understanding of copyright law.” The court also noted that, in the decades that followed, only Pennsylvania recognized a public performance right under its common law while other states rejected it. Based on this history, the Ninth Circuit concluded that “when California first enacted its copyright statute in 1872, the term ‘exclusive ownership’ almost certainly did not include a right of public performance” but rather referred to, and still refers to, “the owner’s common law copyright in an unpublished work to reproduce and sell copies of that work.” The Ninth Circuit further concluded that there was no evidence “suggesting that the California legislature intended to upend the common law understanding of ‘exclusive ownership’ when it enacted its first copyright statute in 1872.”

Accordingly, the Ninth Circuit concluded that the California statute does not confer rights of public performance for pre-1972 works and reversed the district court’s grant of partial summary judgment to Flo & Eddie.