Florida Supreme Court responds to questions about Florida copyright law

By Sara McCleary | Nov 1, 2017

TALLAHASSEE – The Florida Supreme Court answered four certified questions from the 11th Circuit regarding copyright law pertaining to pre-1972 sound recordings in a ruling filed Oct. 26.

Plaintiff and appellant Flo & Eddie owns the master sound recordings of performances by the musical band The Turtles, and filed a complaint against Sirius XM Radio for broadcasting the band’s songs without paying any royalties. The original complaint was filed Sept. 3, 2013, in Florida federal district court.

In its original filing, Flo & Eddie alleged four causes of action under Florida law: common law copyright infringement, common law misappropriation and unfair competition, common law conversion and civil theft. The district court granted the defendant’s motion for summary judgment, and the plaintiff then appealed to the 11th Circuit, which certified four questions of Florida law to the Supreme Court for answer prior to making a ruling.

In the name of clarity, the state supreme court rephrased the first two questions into one combined question, “Does Florida common law recognize the exclusive right of public performance in pre-1972 sound recordings?” The opinion, written by Justice Charles T. Canady, first answers this question before briefly responding to the 11th Circuit’s final two questions.

Justice Charles T. Canady   http://www.floridasupremecourt.org/justices/canady.shtml

The court, while recognizing that there were few precedent-setting cases immediately relevant to the one at hand, answered its combined question in the negative. “Florida common law has never previously recognized an exclusive right of public performance for sound recordings,” Canady wrote. “To recognize such a right for the first time 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’s opinion sets out the legislative history of copyright common law in Florida, noting that Congress had extended copyright protection to the owner of a musical composition since 1831, and in 1909 extended that right to public performance. However, it did not provide for any separate copyright protections for sound recordings until 1971, but that law only applied to recordings produced post-1972 and protected against piracy. It allowed an exception for “transmitting organizations” to make copies for their own use.

The third certified question from the 11th Circuit asked “whether Sirius’ backup or buffer copies infringe Flo & Eddie’s common law copyright exclusive right of reproduction?” The court again answered negatively, finding that the copies are permissible by Florida law because of the specific exception for radio broadcast transmissions.

The final question, also addressed only briefly by the court, was “whether Flo & Eddie nevertheless has a cause of action for common law unfair competition/misappropriation, common law conversion, or statutory civil theft.” The court again answered in the negative, stating that because the plaintiff could not show that the common law rights exist under Florida law, they could not, therefore show that they had been violated, and the complaints necessarily fail.

The court returned the case to the 11th Circuit, having responded to the certified questions.

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