FLO & EDDIE, INC., etc., Appellant, vs. SIRIUS XM RADIO, INC., etc., Appellee.
No. SC16-1161
Supreme Court of Florida
October 26, 2017
CANADY, J.
This Court has for review four questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit in a copyright dispute involving the satellite-radio broadcasting of certain “pre-1972” sound recordings.1
This Court has jurisdiction. See
I. BACKGROUND AND CERTIFIED QUESTIONS
Appellant/plaintiff, Flo & Eddie, Inc. (“Flo & Eddie“), is a California corporation that owns the master sound recordings of certain pre-1972 musical performances by The Turtles. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 827 F.3d 1016, 1018 (11th Cir. 2016).2 Appellee/defendant, Sirius XM Radio, Inc. (“Sirius“), is a satellite and internet radio provider that operates a nationwide broadcast service. Id. Flo & Eddie has never licensed Sirius to play Turtles recordings, and Sirius broadcasts Turtles songs to Sirius‘s subscribers in Florida without paying any royalties to Flo & Eddie. Id. As part of its digital music broadcast service, Sirius creates certain “back-up” and “buffer” copies of recordings on its servers and satellites. Id. A description of those copies is set
forth in the district court‘s opinion. See Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-23182-CIV, 2015 WL 3852692, at *1 (S.D. Fla. June 22, 2015).
A. The District Court
After noting that States are free to regulate pre-1972 sound recordings and that the Florida Statutes do not directly address these issues, the district court
looked to Florida‘s common law and separately analyzed the copyright issues of public performance and reproduction. Flo & Eddie, 2015 WL 3852692, at *3-6.
As to the exclusive right of public performance, the district court concluded that no such right exists under Florida common law. Id. at *5. The district court noted that there was no Florida case law directly on point and that there was very little Florida case law interpreting common law copyright related to the arts in general.4 Id. at *4. The district court thus determined that it was being asked to “creat[e] a new property right in Florida” and declined to do so, concluding that such a task was a legislative one. Id. at *5. The district court also noted that many unanswered questions would result from the recognition of such a new right—issues such as ownership, royalty administration, exceptions, and other stakeholders. Id.
As to the right of reproduction, the district court implicitly assumed that Florida common law recognizes a pre- and post-sale right of reproduction for pre-1972 sound recordings and then concluded that Sirius‘s back-up and buffer copies “do not constitute an improper reproduction.” Id. at *6. The district court found that “none of the buffer or back-up copies are maintained by Sirius or accessible to
the public. They are discarded immediately after use. In addition, the buffer copies are not full length copies of the recording.” Id. In concluding that Sirius did not unlawfully reproduce the sound recordings, the district court cited two decisions from the Second Circuit for the proposition that buffer copies do not constitute copyright infringement. Id. (citing Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121, 127-30 (2d Cir. 2008), and Authors Guild v. HathiTrust, 755 F.3d 87, 97-99 (2d Cir. 2014)).
After determining that Flo & Eddie‘s common law copyright claims failed, the district court then summarily dismissed Flo & Eddie‘s remaining non-copyright claims—for common law misappropriation and unfair competition, common law conversion,
B. The Eleventh Circuit
On appeal, the Eleventh Circuit found the existence of “significant doubt” regarding answers to the material questions of Florida law upon which the case turns. Flo & Eddie, 827 F.3d at 1025. As to the exclusive right of public
performance, the Eleventh Circuit examined this Court‘s decision in Glazer v. Hoffman, 16 So. 2d 53 (Fla. 1943), and ultimately expressed uncertainty regarding the potential application of Glazer to the instant case. Flo & Eddie, 827 F.3d at 1020-22.
In Glazer, Charles Hoffman, a magician/entertainer, sought a permanent injunction against Maurice Glazer, another magician/entertainer, alleging infringement of common law copyright, among other things. Glazer, 16 So. 2d at 53-55. In the complaint it was alleged that, among other things, Glazer imitated several acts and performances that were the “result of great labor, time and efforts.” Id. at 53-54. The acts and performances generally involved using certain mechanical equipment to produce various types of drinks for the audience members through “sleight of hand performance.” Id. at 54. Glazer argued that he did not attempt to deceive the public into thinking his performance was like Hoffman‘s, and that the drink performance was the common property of all magicians because it was merely an old sleight of hand trick. Id. This Court concluded that the performance was “not such a dramatic composition as to bring it within the meaning of the” federal copyright statutes. Id. at 55. This Court then addressed the “asserted common law property right” in and to the performance, concluding that Hoffman‘s performing of the tricks in front of many audiences over the years constituted a publication and a dedication to the public such that the
tricks “became the property of the general public, and [Glazer] had a lawful right to use the same.” Id.
Here, the Eleventh Circuit noted that Glazer could be read to mean that Florida may recognize a common law copyright in sound recordings, which, “no less than magic tricks, are ‘intellectual productions,’ ” Flo & Eddie, 827 F.3d at 1021 (quoting Glazer, 16 So. 2d at 55), while noting that Glazer could also be read to mean that any such common law copyright is extinguished at the moment of “publication” or dedication to the public, which could include the public distribution and sale of phonorecords under the facts of this case, id. at 1021-22.6
Florida law recognizes an exclusive right of reproduction. Id. at 1023-24. The Eleventh Circuit noted that CBS, Inc. v. Garrod, 622 F. Supp. 532 (M.D. Fla. 1985), provided some support for the conclusion that Florida common law recognizes such a right.7 Flo & Eddie, 827 F.3d at 1023-24; see also id. at 1023 n.5. The Eleventh Circuit also noted as potentially relevant the fact that Florida has a criminal record piracy statute and that the statute contains an exception for radio broadcasters. Id. at 1024 (citing
Concerning Flo & Eddie‘s remaining non-copyright claims, the Eleventh Circuit determined that Florida law was unclear whether these claims “may lie in the absence of an enforceable copyright.” Id. at 1024-25.
Consequently, the Eleventh Circuit certified to this Court the following four questions of Florida law:
- Whether Florida recognizes common law copyright in sound recordings and, if so, whether that copyright includes the exclusive right of reproduction and/or the exclusive right of public performance?
- To the extent that Florida recognizes common law copyright in sound recordings, whether the sale and distribution of phonorecords to the public or the public performance thereof constitutes a “publication” for the purpose of divesting the common law copyright protections in sound recordings embedded in the phonorecord and, if so whether the divestment terminates either or both of the exclusive right of public performance and the exclusive right of reproduction?
- To the extent that Florida recognizes a common law copyright including a right of exclusive reproduction in sound recordings, whether Sirius‘s back-up or buffer copies infringe Flo & Eddie‘s common law copyright exclusive right of reproduction?
- To the extent that Florida does not recognize a common law copyright in sound recordings, or to the extent that such a copyright was terminated by publication, whether Flo & Eddie nevertheless has a cause of action for common law unfair competition / misappropriation, common law conversion, or statutory civil theft under
Fla. Stat. § 772.11 andFla. Stat. § 812.014 ?
We conclude that this controversy turns on the threshold question of whether Florida common law recognizes an exclusive right of public performance in pre-1972 sound recordings. Consequently, we combine and then rephrase the first two certified questions into the following determinative question:
Does Florida common law recognize the exclusive right of public performance in pre-1972 sound recordings?
We first explain why we answer the combined and rephrased question in the negative. We then briefly address the remaining two questions of Florida law certified by the Eleventh Circuit.
II. ANALYSIS
As noted by the district court and the Eleventh Circuit, there is no Florida case law specifically addressing Florida common law copyright in the context of sound recordings. But the issue of copyright for sound recordings—including public performance rights—has a long and well-documented history in this country, under both federal law and Florida law. Consequently, we first explore that history and then explain its relevance to our conclusion that Florida common
law does not recognize an exclusive right of public performance in pre-1972 sound recordings.
A. Copyright for Sound Recordings—Federal Law
As recognized by the Eleventh Circuit, “sound recordings . . . are to be distinguished from music compositions, i.e., the actual notation of the musical notes on a page.” Flo & Eddie, 827 F.3d at 1019 n.2; see also Brian T. Yeh, Cong. Research Serv., RL33631, Copyright Licensing in Music Distribution, Reproduction, and Public Performance 2-3 (2015) (noting the distinction under federal copyright law between “musical works” and “sound recordings“). Musical compositions have been protected by federal copyright law since 1831. See
Historically, the performing artist who recorded the song (or the record company), however, was not entitled to a separate federal copyright for the sound recording and thus did not receive any royalties when the recorded song was played on the radio. For decades, record companies and artists sought to change that result. Numerous bills were introduced over the years that would have provided a performance right for sound recordings, but those bills all failed. See, e.g., H.R. 10632, 74th Cong. (1936); H.R. 7173, 77th Cong. (1942); H.R. 1270, 80th Cong. (1947); see also Linda A. Newmark, Performance Rights in Sound Recordings: An Analysis of the Constitutional,
In 1971—in an apparent response to the rise of record piracy—Congress extended federal copyright protection to sound recordings for the very first time in the
public performance. Thus, under federal law, the playing of a sound recording over the radio continued to require only one license—from the copyright owner of the musical work. The Act of 1971 only applied to those sound recordings “fixed, published, and copyrighted” on or after February 15, 1972, which was the effective date of the Act of 1971.
In 1976, Congress amended title 17 of the United States Code in its entirety, largely bringing all of copyright law under the federal umbrella.9 See
sound recordings, until February 15, 2047.10
In 1995—in an apparent response to the rise of certain digital technologies—Congress expanded federal copyright protection for post-1972 sound recordings, granting them an exclusive right of public performance for the very first time. See
sound recordings, whether pre-1972 or post-1972. The Act of 1995 reflects Congress‘s attempt at a balancing act of the various competing stakeholder interests involved in this arena. Namely, the Act of 1995 included, among other things, a compulsory license scheme for companies that engage in the digital transmission of sound recordings, a rate-setting mechanism, an exemption for traditional radio, and a mandate for royalty sharing with the performers. See generally Act of 1995.
This relevant history shows that federal copyright law has long distinguished the right of public performance from the right of reproduction and that up until 1995—when Congress granted a limited right of public performance for post-1972 sound recordings—Congress had repeatedly declined to recognize any right of public performance for any sound recordings.
B. Copyright for Sound Recordings—Florida Law
Although no Florida case law specifically addresses Florida common law copyright in the context of sound recordings, the Florida Legislature has addressed the issue of copyright for sound recordings on various occasions. These legislative measures in Florida were directly related to Congress‘s amendments to the federal copyright laws, as well as to certain case law emanating from other jurisdictions, namely, two cases that specifically addressed the issue of public performance rights for sound recordings—Waring v. WDAS Broadcasting Station, Inc., 194 A.
631 (Pa. 1937), and RCA Manufacturing Co. v. Whiteman, 114 F.2d 86 (2d Cir. 1940).
In Waring, the Supreme Court of Pennsylvania identified but then declined to follow the “general American doctrine,” under which the act of “publication” by the holder of certain common law property rights generally terminates those rights. Waring, 194 A. at 635-36. Waring involved a conductor of an orchestra filing suit to enjoin a radio station from broadcasting phonograph records of the orchestra performing its own artistic renditions of popular music. Id. at 632-33. The orchestra originally played in certain limited venues and eventually began to play over the radio, entering into a contract with the Ford Motor Company to broadcast on one night of the week. Id. The orchestra also started to make phonograph records for the Victor Talking Machine Company to sell to the public, but the records contained a label that read: “Not licensed for radio broadcast.” Id. at 633. The defendant purchased a copy of the phonograph record and began playing it on the defendant‘s radio station. Id. Waring recognized that the case presented an issue of first impression. Id. at 632.
After recognizing that the sound recordings were not protected under federal copyright law, id. at 633, Waring concluded that the orchestra had a common law property right because the orchestra‘s productions met the test of “elevat[ing] interpretations to the realm of independent works of art,” id. at 635. Waring then
addressed the issue of whether the orchestra should be considered to have lost its property interest through “publication“—the general rule in the realm of common law copyright. Id. at 635-36. Waring concluded that
In 1940, the Second Circuit Court of Appeals in Whiteman expressly disagreed with the Supreme Court of Pennsylvania‘s decision in Waring. Whiteman similarly involved an orchestra attempting to enjoin a radio station from broadcasting phonograph records of the orchestra‘s musical performances that were sold with the following restrictive legend: “Not Licensed for Radio Broadcast.” Whiteman, 114 F.2d at 87. But Whiteman concluded that New York would follow the doctrine that any common law protection in the sound recordings “ended with the sale of the records.” Id. at 88. Whiteman reasoned that to rule otherwise would be to effectively grant a perpetual monopoly to a work that was otherwise non-copyrightable under federal copyright law—a law which itself
grants only a temporary monopoly to a copyrightable work in exchange for its dedication to the public. Id. at 89. Thus, Whiteman determined that any relief for sound recording owners must come from Congress, not from the courts. Id. (“Any relief which justice demands must be found in extending statutory copyright to such works . . . .“).12
In the wake of Waring and Whiteman, the Florida Legislature enacted legislation aimed squarely at the issue of claimed public performance rights for sound recordings. See
543.02. Common law rights abolished.—When any phonograph record or electrical transcription, upon which musical performances are embodied, is sold in commerce for use within this state, all asserted common law rights to further restrict or to collect royalties on the commercial use made of any such recorded performances by any person are hereby abrogated and expressly repealed. When such article or chattel has been sold in commerce, any asserted intangible rights shall be deemed to have passed to the purchaser upon the purchase of the chattel itself, and the right to further restrict the use made of phonograph records or electrical
transcriptions, whose sole value is in their use, is hereby forbidden and abrogated.
543.03. Rights under copyright laws unaffected.—Nothing in § 543.02 or this section shall be deemed to deny the rights granted any person by the United States copyright laws. The sole intendment of this enactment is to abolish any common law rights attaching to phonograph records and electrical transcriptions,
whose sole value is in their use, and to forbid further restrictions or the collection of subsequent fees and royalties on phonograph records and electrical transcriptions by performers who were paid for the initial performance at the recording thereof.
The enactment of this law indicates the Florida Legislature‘s intent to codify the “general American doctrine” that Waring acknowledged but declined to follow, see Waring, 194 A. at 635-36, and that Whiteman adopted, see Whiteman, 114 F.2d at 88.
Thirty years later, shortly before Congress passed the Act of 1971—which provided copyright protection to post-1972 sound recordings solely in the context of the right to “reproduce and distribute” reproductions of the recordings, see
543.02, which continued to provide that the public sale of a sound recording extinguished any asserted common law rights to restrict the commercial use made of that recorded performance. Thus, like Congress, the Florida Legislature clearly viewed the issue of public performance rights for sound recordings as separate and distinct from the right of reproduction.
In 1977, shortly before the effective date of Congress‘s sweepingly preemptive Act of 1976, the Florida Legislature repealed almost all of chapter 543, Florida Statutes, including the common-law-divestiture provision in sections 543.02 and 543.03. See
archival preservation transfers any such sounds recorded on a sound recording.
C. Answering the Combined and Rephrased Certified Question—Does Florida Common Law Recognize the Right of Public Performance for Pre-1972 Recordings?
Florida common law has never previously recognized an exclusive right of public
As set forth above, since 1831, Congress has extended copyright protection to the owner of the musical composition itself. See Act of Feb. 3, 1831, ch. 16, § 1, 4 Stat. 436. And since 1909, that copyright protection has included the exclusive right of public performance. See Act of March 4, 1909, Pub. L. No. 60-349, § 1(e), 35 Stat. 1075. Congress—over the course of several decades—then repeatedly declined to provide any form of separate copyright protection for sound recordings. In 1971, Congress finally extended federal copyright protection to sound recordings, but only to post-1972 sound recordings, see Act of 1971, § 3, 85 Stat. 392, and solely with respect to record piracy, with an exception for “transmitting organizations” for their own use, id. § 1, 85 Stat. 391. It was not until the Act of 1995 that Congress finally granted a limited right of public performance that only applied to the public performance of post-1972 sound recordings “by means of a digital audio transmission.” See Act of 1995, § 2, 109 Stat. 336 (amending
Unlike the carefully delineated and limited right of public performance for post-1972 sound recordings that Congress eventually recognized in 1995 and circumscribed within the context of the various competing stakeholder interests, the Florida common law right sought by Flo & Eddie for pre-1972 sound recordings is unfettered. Thus, if this exclusive right of public performance has existed all along under the common law, then one would have to conclude that Congress actually took away that common law right for post-1972 recordings, on a going-forward basis, when enacting the Act of 1971—an act that recognized solely the right of reproduction in post-1972 sound recordings. See Act of 1971, § 1, 85 Stat. 391. And one would have to conclude that Congress then only partially restored that right when enacting
As set forth above, certain legislative developments in Florida are also relevant to our conclusion. Flo & Eddie cites the Legislature‘s enactment of sections
As an initial matter, at the time the Legislature enacted sections
Flo & Eddie also argues that when the Legislature subsequently repealed sections
First, as just explained, Florida common law had never recognized any exclusive right of public performance prior to the enactment of sections
The second problem with Flo & Eddie‘s repeal argument is in its reliance on this Court‘s decision in Glazer. Flo & Eddie argues that in Glazer, “this Court expressly recognized the copyright principles embraced in the seminal and instructive Waring case.” In certifying the questions of
As an initial matter, we note that Glazer did not adopt Waring. Instead, Glazer‘s lone reference to Waring was a bare recitation that Waring was one of approximately seven different cases relied on by the plaintiff in Glazer. See Glazer, 16 So. 2d at 55. Another problem with Flo & Eddie‘s reliance on Glazer is that Glazer was decided in 1943, after the enactment of sections
The third problem with Flo & Eddie‘s repeal argument is that the sound recordings at issue were sold in commerce in Florida at a time when sections
Finally, we note that Flo & Eddie relies on the assertion that New York common law recognizes a right of public performance in pre-1972 sound recordings. In fact, Flo & Eddie argues that this Court‘s decision in Glazer—which Flo & Eddie interprets as recognizing an exclusive right of public performance for pre-1972 sound recordings—is “entirely in accord with the decisions from New York and Pennsylvania that have arrived at the same conclusion grounded on the English common law adopted in those states as well as in the State of Florida.” As an initial matter, the development of New York and Pennsylvania common law is not dispositive here. But in any event, we note that the New York Court of Appeals has since squarely rejected Flo & Eddie‘s interpretation of New York law. The Court of Appeals has held unequivocally that “New York‘s common-law copyright has never recognized a right of public performance for pre-1972 sound recordings.” Flo & Eddie, 70 N.E.3d at 949. In declining to recognize the right of public performance for the very first time, the New York Court of Appeals observed that the common law “evolves slowly and incrementally, eschewing sudden or sweeping changes.” Id. at 941.16
This Court has similarly noted that the common law should be altered only in rare circumstances. See, e.g., In re T.A.C.P., 609 So. 2d 588, 594 (Fla. 1992) (noting that the common law should be altered only when “demanded by public necessity” or when necessary “to vindicate fundamental rights” (citation omitted)); Hoffman v. Jones, 280 So. 2d 431, 435 (Fla. 1973) (“[T]his Court may change the [common law] where great social upheaval dictates.“). And we conclude that this case does not demand the recognition of a new common law right of public performance in pre-1972 sound recordings.
In short, we answer the combined and rephrased certified question as follows:
Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings.
Because the issue of public performance rights is, in our view, the determinative issue based on the facts of this case, we
D. Remaining Two Certified Questions
The Eleventh Circuit certified the following additional question concerning “back-up or buffer copies“:
3. To the extent that Florida recognizes a common law copyright including a right of exclusive reproduction in sound recordings, whether Sirius‘s back-up or buffer copies infringe Flo & Eddie‘s common law copyright exclusive right of reproduction?
Flo & Eddie, 827 F.3d at 1025. Even assuming that Florida common law recognizes the existence of a post-sale exclusive right of reproduction in pre-1972 sound recordings, any such right would not be unfettered and we would conclude that no violation occurred under the facts of this case. We agree with the Second Circuit‘s conclusion in Flo & Eddie‘s related suit that, based on the facts, Flo & Eddie‘s “copying claims” fail because “the ultimate use of the internal copies is permissible.” Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 849 F.3d 14, 16-17 (2d Cir. 2017) (citation omitted). And we agree with the district court‘s decision in this case to dismiss Flo & Eddie‘s reproduction claims. Flo & Eddie, 2015 WL 3852692, at *6. Finding for Flo & Eddie on this question would require this Court to, among other things, ignore the fact that for the past four decades, Florida‘s record piracy statute—albeit a criminal one—has contained a specific exception for copies made “in connection with, or as part of” radio broadcast transmissions. See
The Eleventh Circuit also certified the following question related to other causes of action asserted by Flo & Eddie:
4. To the extent that Florida does not recognize a common law copyright in sound recordings, or to the extent that such a copyright was terminated by publication, whether Flo & Eddie nevertheless has a cause of action for common law unfair competition / misappropriation, common law conversion, or statutory civil theft under
Fla. Stat. § 772.11 andFla. Stat. § 812.014 ?
Flo & Eddie, 827 F.3d at 1025. We answer this question in the negative. Because Flo & Eddie cannot show that the asserted common law property rights both exist under Florida law and were violated, Flo & Eddie‘s remaining causes of action necessarily fail. We agree with the district court‘s decision in this case to summarily dismiss Flo & Eddie‘s remaining claims as being “without merit” because the claims were “all based on [the] alleged common law copyright.” Flo & Eddie, 2015 WL 3852692, at *6. And we agree with the Second Circuit‘s conclusion in Flo & Eddie‘s related lawsuit that the answer to the certified question involving public performance rights was determinative of all claims. Flo & Eddie, 849 F.3d at 16-17.18
For the reasons explained above, we combine and rephrase the first two questions certified by the Eleventh Circuit into a single determinative question and hold that Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings. And we address the remaining certified questions by concluding that Flo & Eddie‘s remaining claims fail under Florida law. Having answered the certified questions, we return this case to the Eleventh Circuit Court of Appeals.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, and LAWSON, JJ., concur.
LEWIS, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
Certified Question of Law from the United States Court of Appeals for the Eleventh Circuit – Case No. 15-13100
Angel A. Cortinas and Jonathan H. Kaskel of Gunster, Miami, Florida; Henry D. Gradstein and Maryann R. Marzano of Gradstein & Marzano, P.C., Los Angeles, California; and Glen H. Waldman, Eleanor T. Barnett, and Jason Gordon of Waldman Barnett, P.L., Coconut Grove, Florida,
for Appellant
David M. Gersten of Gordon & Rees Scully Mansukhani, Miami, Florida; and Daniel M. Petrocelli and Cassandra L. Seto of O‘Melveny & Myers, LLP, Los Angeles, California, Anton Metlitsky of O‘Melveny & Myers, LLP, New York, New York, and Jonathan D. Hacker of O‘Melveny & Myers, LLP, Chevy Chase, Maryland,
for Appellee
Julee L. Milham, St. Pete Beach, Florida, Charlotte C. Towne, Dani Beach, Florida, Stephen M. Carlisle, Fort Lauderdale, Florida, and Robert A. McNeeley, Tallahassee, Florida,
Amicus Curiae Entertainment, Arts, and Sports Law Section of the Florida Bar
Lisa K. Rushton and Stephen B. Kinnaird of Paul Hastings, LLP, Washington, District of Columbia, Richard Adam Kaplan of National Association of Broadcasters, Washington, District of Columbia,
Amicus Curiae National Association of Broadcasters
Dineen Pashoukos Wasylik of DPW Legal, Tampa, Florida,
Amicus Curiae Electronic Frontier Foundation
Danielle M. D‘Oyley and Jonathan Y. Ellis of Lathan & Watkins, Washington, District of Columbia, Andrew M. Gass and James K. Lynch of Latham & Watkins, San Francisco, California,
Amici Curiae iHeartMedia, Inc. and Pandora Media, Inc.
Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, Florida,
Amicus Curiae Copyright and Intellectual Property Law Professors
Notes
The Eleventh Circuit also examined the New York Court of Appeals’ decision in Capitol Records, Inc. v. Naxos of America, Inc., 830 N.E.2d 250 (N.Y. 2005), and concluded that “[u]nder New York common law, the public sale of a sound recording is not a general publication that ends common law copyright protection.” Flo & Eddie, 827 F.3d at 1022-23. We note that the New York Court of Appeals recently distinguished Naxos (and certain other cases addressing New York common law) as involving solely the right of reproduction, holding that New York common law “does not recognize a right of public performance for creators of sound recordings.” Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 70 N.E.3d 936, 937 (N.Y. 2016).