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Florida Supreme Court to hear Turtles copyright case

By Rebecca Campbell | Feb 14, 2017

TALLAHASSEE — The Florida Supreme Court is set to hear arguments in a copyright infringement lawsuit that was filed by 1960s rock group The Turtles against U.S.-based SiriusXM satellite radio on April 6, according to the News Service of Florida.

Flo & Eddie Inc., the California-based company whose principals are Turtles vocalists Mark Volman and Howard Kaylan, filed a lawsuit in 2013 alleging copyright infringement involving music that had been made before 1972, against SiriusXM for the protection of pre-1972 sound recordings.

According to a previous report on the Florida Record, Volman and Kaylan are challenging the long-held assumption that radio broadcasters are required to pay owners any royalties for their sound recordings prior to Feb. 15, 1972.

The Federal Copyright Act of 1976 states the protections for rights over original musical works, which includes sound recordings and compositions from that date. The Florida Record report said that legislation dating as far back as 1897 provides broad federal protections for musical compositions, but doesn’t address sound recordings.

Previous courts in California and New York found in favor of Flo & Eddie involving lawsuits against SiriusXM. However, a district court for Florida’s Southern District found in June last year that there were no statutes or common law in the state that covers sound-recording property rights made before 1972.

In a report on The 1709 Blog, Judge Darrin Gayle said “Florida is different” compared to California and New York. Gayle said that “there is no specific Florida legislation covering sound-recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts.”

News preceding this found in December 2016 that a majority of New York’s highest court rules that SiriusXM doesn’t require permission or need to pay compensation to owners of pre-1972 music recordings in order to play their tracks in case they were brought by the owners of The Turtle’s 1967 hit “Happy Together.”

On June 29, 2016, according to court documents, the 11th Circuit Court of Appeals decided to ask the state Supreme Court to determine whether Florida recognizes common-law copyright. In a 1943 magician’s case, Glazer V. Hoffman, the Florida Supreme Court ruled that while the trademark rights to a name can be protected, the act of the entertainment is not.

Now, however, according to the News Service of Florida report on NewsHerald.com, the case was passed to the 11th U.S. Circuit Court of Appeals, which asked the Florida Supreme Court to take up the issues involving state law.

If, however, Flo & Eddie do win, SiriusXM, the Internet music service Pandora and many others “would owe damages not only to (them), but potentially all other owners of pre-1972 sound recordings,” which would include “every recording ever made by The Beatles, The Doors, Jimi Hendrix and Janis Joplin, not to mention Glenn Miller and Tommy Dorsey,” according to a 2014 blog post by Nova Southeastern University copyright officer Stephen Carlisle.

According to attorney John Rizvi of Gold & Rizvi, who previously spoke to the Florida Record, finding Flo & Eddie in favor would bring Florida into line with the federal Sound Recording Act of 1971.

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