A federal court in Florida has provided a ray of legal sunshine for Sirius XM , in a way that its counterparts in California and New York haven’t: The satellite music company finally has won a legal battle in the public performance war that Flo & Eddie have waged with Sirius over their pre-1972 sound recordings with The Turtles. As this blog has recounted since this case’s outset, musicians and composers have turned to a state by state campaign to protect their rights to classic tunes, finding a gap in federal copyright coverage.
The courts holding sway over America’s two Entertainment capitals have viewed the creatives’ cause favorably but the Sunshine State, a judge in Miami has said, has no common law basis for a similar sunny view. What’s this cloudy Dixieland difference?
While federal copyright law protects public performance for all sound recordings made after Feb. 15, 1972, prior works lack similar coverage. Instead, due to the way lawmakers penned copyright statutes and the courts have interpreted them, it falls to the individual states to grant copyright holders a defense of tunes from what many consider a golden era for rock, pop, soul, jazz, blues and other music.
The artists known as Flo & Eddie, aka onetime Turtles Howard Kaylan and Mark Volman, have already taken their claims to California, the Entertainment Capital of the World, and New York. Federal judges in both states have ruled in their favor, finding the creatives likely hold public performance rights over their copyrighted pre-1972 recordings, sufficiently so that fuller consideration should be given to their claims. The California and New York rulings have been considered legally significant, due to the volume and sway over Entertainment Law cases that these two giant jurisdictions hold.
But for musicians, composers, and others wanting their rights recognized to pre-1972 works, Florida isn’t exactly chopped liver, with its sizable population and burgeoning Entertainment enterprises. So it was something of a setback for them when U.S. District Judge Darrin P. Gayles ruled that there was neither state statute nor case law support for the legal case advanced by Flo & Eddie for their pre-1972 works. Absent statute and precedent, his only alternative was to create law, Gayles wrote, and he said courts have declined to do so, time and time again. Creating copyright protections for the earlier recordings would generate a whole new set of issues that lawmakers, not courts, need to sort out, he said.
For Sirius, this Florida decision had another technical importance: The company in the Sunshine State creates and keeps its buffer copies for satellite broadcast. These copies are incomplete, aren’t distributed to the public, and are destroyed almost immediately after their creation. But they still are copies and might have been subject to copyright protection. Gayles also ruled that the making of them and the copies themselves weren’t an infringement. Will this make Florida a haven and hub for buffer copiers?
Flo & Eddie and their counsel haven’t commented on the Florida ruling, especially to say whether they plan an appeal.