The Turtles Survive Again in Florida Case Against SiriusXM on pre-72 Recordings

The Turtles are suing SiriusXM in a “putative” class action being heard in California, New York and in Florida for infringing pre-72 recordings under the laws of those states.  Sirius and Pandora seem to be hell-bent on denying pre-72 artists and their heirs any revenues for the wide exploitation of recordings from this era for reasons known only to them.

The Florida case in federal court brought claims against SiriusXM relating to Florida state common law copyright for (1) common law copyright infringement, (2) common law misappropriation / unfair competition; (3) common law conversion; and (4) civil theft.

SiriusXM won its motion on summary judgement in the federal trial court and The Turtles (aka “Flo & Eddie”) appealed to the 11th Circuit.  In order to grant the summary judgement motion for Sirius, the federal trial court had to make a number of assumptions about unsettled areas of Florida state law that the appeals court were not prepared to endorse.

Federal courts in this situation have the ability to “certify” certain questions to an appropriate authority.  The 11th Circuit has certified certain questions about the interpretation of Florida state law to the Florida Supreme Court.  Depending on how the Florida Supreme Court answers these certified questions, the 11th Circuit will then be able to rule on the Turtles appeal.

So–while the Turtles have not won the substantive issues in the appeal as yet, they have lived to fight another day on appeal.  To the extent anyone can read the tea leaves on these things, it does seem that the 11th Circuit was at least very interested in being fair to the Turtles and the putative class.

The certified questions are:

1. Whether Florida recognizes common law copyright in sound recordings and, if so, whether that copyright includes the exclusive right of reproduction and/or the exclusive right of public performance?

2. To the extent that Florida recognizes common law copyright in sound recordings, whether the sale and distribution of phonorecords to the public or the public performance thereof constitutes a “publication” for the purpose of divesting the common law copyright protections in sound recordings embedded in the phonorecord and, if so whether the divestment terminates either or both of the exclusive right of public performance and the exclusive right of reproduction?

3. To the extent that Florida recognizes a common law copyright including a right of exclusive reproduction in sound recordings, whether Sirius’s back-up or buffer copies infringe Flo & Eddie’s common law copyright exclusive right of reproduction?

4. To the extent that Florida does not recognize a common law copyright in sound recordings, or to the extent that such a copyright was terminated by publication, whether Flo & Eddie nevertheless has a cause of action for common law unfair competition/misappropriation, common law conversion, or statutory civil theft under FLA. STAT. 772.11 and FLA. STAT. 812.014?

Here’s a copy of the 11th Circuit’s opinion:  Flo + Eddie vs SiriusXM (Florida)