Flo & Eddie, Inc. v. Pandora Media, Inc.
2017 U.S. App. LEXIS 4525
| 9th Cir. | 2017Background
- Flo & Eddie (owners of pre-1972 Turtles recordings) sued Pandora for publicly performing those recordings on its streaming service without paying royalties.
- Flo & Eddie alleged rights under California Civil Code § 980(a)(2) (enacted 1982 to protect pre-1972 sound recordings) and under California common law.
- Pandora moved under California’s anti‑SLAPP statute, arguing (a) pre‑1972 recordings entered the public domain upon publication under earlier § 983, and (b) § 980(a)(2) does not create a public‑performance right.
- The district court denied the anti‑SLAPP motion, concluding § 980(a)(2) and California common law could grant a property right in public performance, and Flo & Eddie’s misappropriation/conversion/unfair‑competition claims were legally sufficient.
- The Ninth Circuit found controlling California precedent lacking and certified two questions to the California Supreme Court about (1) whether § 980(a)(2) grants an exclusive public‑performance right for pre‑1972 sound recordings and (2) if not, whether California common law provides such a right.
- The Ninth Circuit stayed proceedings and withdrew the appeal from submission pending the California Supreme Court’s responses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. Civ. Code § 980(a)(2) gives owners of pre‑1972 sound recordings an exclusive right of public performance | § 980(a)(2)’s grant of “exclusive ownership” includes the right to exclude unauthorized public performances | § 980(a)(2) did not revive protection for recordings that entered the public domain on publication under earlier § 983, and in any event the statute was not meant to create a public‑performance right | Court certified this question to the California Supreme Court for authoritative resolution and stayed the case |
| If § 980(a)(2) does not, whether California common law of property or tort supplies an exclusive public‑performance right | California common law protects sound recordings and can provide an exclusive public‑performance right independent of § 980(a)(2) | California common law does not recognize an exclusive public‑performance right for sound recordings; any such right was not preserved or intended by the legislature | Court certified this question to the California Supreme Court and stayed the case |
Key Cases Cited
- Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162 (9th Cir.) (describes protection regime under the 1909 Act for unpublished vs. published works)
- Batjac Prods. Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223 (9th Cir.) (explains how 1976 Act altered preemption of state common law copyright)
- Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718 (9th Cir.) (addressed loss of state common‑law protection upon publication in a piracy context)
- Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 821 F.3d 265 (2d Cir.) (certified related state‑law question to New York courts and discussed scope of common law rights)
- Capitol Records, LLC v. Bluebeat, Inc., 765 F. Supp. 2d 1198 (C.D. Cal.) (addressed state‑law protection for sound recordings in related litigation)