(CN) - A challenge by 1960s rock band The Turtles to royalty-free broadcasts of their songs by Sirius XM Radio requires input from the Florida Supreme Court, the 11th Circuit said.
One of several cases tackling the issue of whether broadcasters like Sirius have to pay royalties for playing pre-1972 recordings, Turtles frontmen Mark Volman and Howard Kaylan brought the underlying suit three years ago in Florida through their company, Flo and Eddie Inc.
The cascade of civil actions, a handful of which were filed by The Turtles frontmen, stems in part from a bifurcated regulatory scheme: While the federal Sound Recording Act governs post-1972 works, an often murky patchwork of state law governs earlier recordings.
In Flo and Eddie's Florida case, the band sought compensation from Sirius for broadcasts including the 1967 tune "Happy Together," which famously dislodged the Beatles' "Penny Lane" from its top spot on the Billboard charts.
A federal judge in Miami granted Sirius summary judgment, however, setting the stage for Flo and Eddie's 11th Circuit appeal.
A three-judge panel with the federal appeals court in Atlanta opted last week to seek the Florida Supreme Court's input, finding Sunshine State precedent unclear.
In the 2005 New York case Capitol Records v. Naxos of America, the state's high court ruled that a musician or record label's distribution and sale of a record do not terminate common-law copyright protections for the record.
Florida case law on the matter is so thin, however, that the 11th Circuit had to reach back to a 1943 copyright case filed by a magician - Charles Hoffman - who claimed a rival named Maurice Glazer had ripped off his "Think-a-Drink" trick. (The classic trick involved the use of supposedly magical containers to transform water into any beverage his audience member desired.)
The Florida Supreme Court in that case ruled that, although Hoffman was entitled to protection of his "Think-a-Drink" moniker and the speech he recited to the audience during the trick, the trick itself had become "property of the general public" through Hoffman's repeated public performance of it.
The Eleventh Circuit found that the 70-year-old ruling provides some guidance on common law copyright in Florida, but that significant uncertainty remained.
"Kaylan characterized The Turtles' recordings, including such 'iconic' hits as Happy Together, as 'clearly part of world history and not just American history,'" Judge Lanier Anderson wrote for the court. "These facts, among others in the record, suggest that to the extent that public distribution and sale of a phonorecord ... constitutes publication of the sound recording therein under Florida common law, there is a strong possibility that any Florida common law copyright has been terminated by publication."
The appellate panel seeks guidance from the Florida Supreme Court regarding whether the state recognizes musicians' exclusive right of broadcast/public performance of their sound recordings, and regarding the extent to which prior sale of recordings terminates copyright protection.
Another question the panel has punted asks whether, as The Turtles frontmen had alleged, Sirius' creation of backup and buffer copies of Turtles songs violated the band's rights to reproduction of the recordings.
The Turtles additional claims of misappropriation, conversion and civil theft are likewise left in limbo, with the parties in dispute over the degree to which those counts are derivative of the copyright claims.
When the Turtles frontmen brought the underlying Florida lawsuit in 2013, they also filed parallel complaints in New York and California.
In the New York case, the Empire State's highest court is set to advise the Second Circuit as to whether owners of sound recordings have a right of public performance.
A federal judge in California meanwhile certified Flo and Eddie's class action last year, paving the way for musicians and music owners to seek damages from Sirius for withholding royalties for broadcasts of pre-1972 music.
Flo and Eddie won summary judgment as to Sirius' liability in that case the year prior.
Last summer, the same judge refused the former band's attempt to block the landmark $210 million settlement that Sirius reached with the Recording Industry Association of America over pre-1972 songs, including tunes by The Beatles and Rolling Stones.
The settlement lets Sirius retain the rights to broadcast pre-1972 music owned by several RIAA constituent record labels until the end of 2017.
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