Flo & Eddie, Inc., etc. v. Sirius XM Radio, Inc., etc.
229 So. 3d 305
| Fla. | 2017Background
- Flo & Eddie, owner of pre-1972 master recordings by The Turtles, sued Sirius XM in Florida federal court claiming unauthorized public performance (satellite broadcasts) and unlawful reproductions (backup/buffer copies).
- Flo & Eddie pleaded four Florida-law claims: common-law copyright, misappropriation/unfair competition, conversion, and civil theft under Fla. Stat. § 772.11 (based on § 812.014).
- District court granted summary judgment for Sirius: held Florida common law does not recognize an exclusive public-performance right in sound recordings and found Sirius’s buffer/back-up copies noninfringing; dismissed the dependent non-copyright claims.
- Eleventh Circuit found significant uncertainty in Florida law (noting Glazer and other authorities) and certified four questions to the Florida Supreme Court about (1) existence/scope of common-law rights in pre-1972 recordings, (2) whether sale/publication divests any such rights, (3) whether Sirius’s copies infringe, and (4) whether non-copyright causes of action survive without such rights.
- Florida Supreme Court combined and rephrased the threshold question and held that Florida common law does NOT recognize an exclusive public-performance right in pre-1972 sound recordings; it also rejected recovery on reproduction (buffer) and other dependent claims under these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Florida common law recognize an exclusive public-performance right in pre-1972 sound recordings? | Flo & Eddie: common law recognizes such a right (Glazer and persuasive out-of-state authority support protection). | Sirius: no such Florida common-law right; recognition would be a sweeping change for the Legislature. | No — Florida common law does not recognize an exclusive public-performance right for pre-1972 recordings. |
| Does public sale/publication of phonorecords divest any common-law rights? | Flo & Eddie: repeal/revival arguments — rights should exist or revest after repeal of earlier statutes. | Sirius: historic statutes and decisions show publication generally divests common-law rights; legislative history supports that outcome. | Publication historically divested claimed rights; repeal of statutes did not resurrect enforceable public-performance rights for the recordings at issue. |
| Do Sirius’s back-up/buffer copies infringe an alleged post-sale reproduction right? | Flo & Eddie: internal copies used by Sirius infringe a common-law reproduction right (if recognized). | Sirius: even assuming a reproduction right, the limited ephemeral/internal use falls within exceptions and is noninfringing. | No — under the facts, Sirius’s buffer/back-up copies do not violate any recognized right; copying claims fail. |
| If no common-law copyright exists, do other claims (misappropriation, conversion, civil theft) survive? | Flo & Eddie: these tort/statutory claims can proceed independent of a common-law copyright. | Sirius: those claims are premised on the alleged copyright right and fail if that right is absent or terminated. | No — without an enforceable common-law property right, the dependent claims fail. |
Key Cases Cited
- Glazer v. Hoffman, 16 So. 2d 53 (Fla. 1943) (addressed common-law property in performances and publication/dedication concept)
- Waring v. WDAS Broad. Station, 194 A. 631 (Pa. 1937) (recognized common-law public-performance interest in orchestra recordings and limited publication doctrine)
- RCA Mfg. Co. v. Whiteman, 114 F.2d 86 (2d Cir. 1940) (rejected Waring’s approach; held sale divests common-law protection)
- Capitol Records, Inc. v. Naxos of Am., 830 N.E.2d 250 (N.Y. 2005) (New York common law analysis of pre-1972 recording rights; later clarified by NY Court of Appeals)
- Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657 (2d Cir. 1955) (New York line on reproduction/distribution and anti-piracy context)
- Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (buffer-copy analysis relying on federal copyright principles)
- Authors Guild v. Hathi Trust, 755 F.3d 87 (2d Cir. 2014) (addressed ephemeral copying issues in light of federal copyright law)
- Goldstein v. California, 412 U.S. 546 (U.S. 1973) (observed Congress left pre-1972 recordings to state regulation)