Florida Supreme Court Says SiriusXM Doesn’t Have to Pay to Play Oldies

(CN) – The Florida Supreme Court handed the 60s rock act The Turtles a loss on Thursday, ruling SiriusXM doesn’t have to pay royalties for playing the hits the band recorded prior to 1972.

Mark Volman and Howard Kaylan, also known professionally as Flo & Eddie, sued SiriusXM in Florida in 2013, and filed similar lawsuits in New York and California.

The Florida lawsuit accused the satellite radio giant of infringing on what Volman and Kaylan argued was a common-law copyright of songs. The Turtles were huge in the mid-1960s, scoring a string of hits including “Happy Together,” “Eleanor,” and “She Would Rather Be With Me.”

Their hit-making days as the Turtles ended with the advent of “progressive” or album-oriented FM rock radio in the late 1960s, but after a stint with Frank Zappa and his Mothers of Invention they reinvented themselves as the music industry’s premier backing vocalists.

Among the Top Ten hits they sang on during the ensuing decades was Bruce Springsteen’s “Hungry Heart.”

Despite their continued success, Volman and Kaylan were rankled by SiriusXM’s use of their early music without payment, calling its plays “unauthorized public performances” of the Turtles’ property.

Thursday’s decision upheld the decision of a federal judge who concluded that nothing in Florida statutes or common law deals with copyrights of recordings that were made before 1972, when the federal Sound Recordings Act went into effect.

Flo & Eddie appealed, but the 11th Circuit sent the case to the Florida Supreme Court, asking justices to decide, among other things, whether state common law recognizes a property right in sound recordings.

Florida law “has never previously recognized an exclusive right of public performance for sound recordings,” Justice Charles Canady wrote in Thursday’s 35-page unanimous decision.

“To recognize such a right for the first time today would be an inherently legislative task. Such a decision would have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit,” Canady wrote.

In the 35-page opinion, Canady recounted the decades of wrangling by record companies, songwriters and broadcasters over the Sound Recording Act that gave federal copyright protection to all recordings made after 1972, but not those recorded prior, and left the states to come up with their own regulations. In 1995, Congress expanded copyright protections, but still left the pre-1972 rules in place.

Volman and Kaylan joined other artists of the era and sued in an attempt to clarify those laws state-by-state.

In addition to denying royalties to Flo & Eddie, the court also ruled SiriusXM did not unlawfully reproduce recordings when the company created “back-up” or “buffer” copies of the songs on servers, because the copies are not accessible to the public and discarded after use.

Sirius XM could be immediately reached for comment.

The issue of public performance rights for sound recordings has surfaced again in recent years due to online streaming services like Pandora and Spotify.

In 2015, Sirius XM agreed to pay $210 million to record companies for past use of pre-1972 songs. Pandora accepted a $90 million settlement with the Recording Industry Association of America the same year. Flo & Eddie also have a case pending in the California Supreme Court against the streaming service.

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