Flo & Eddie Royalty Case Flushed By Florida Court


HOLLYWOOD, FLA. — The Supreme Court for the State of Florida has sided with a decision rendered by the state’s Eleventh Circuit Court of Appeals, affirming that common law in the Sunshine State does not recognize an exclusive right of public performance in pre-1972 sound recordings.

Translation: Mark Volman and Howard Kaylan, otherwise known as “Flo & Eddie,” co-founders of 1960s pop act Turtles, have lost their copyright battle waged in Tallahassee.

In a 35-page ruling, the court unanimously returned the case to the Eleventh Circuit Court of Appeals, a move that reframes two questions into one, yet largely affirms the Florida Supreme Court’s belief that it cannot “recognize an unworkable common law right in pre-1972 sound recordings that is broader than any right ever previously recognized in any sound recording.”

Such a shift by the Court would require it, among other things, to “ignore the lengthy and well-documented history of this topic — something we decline to do.”

The Oct. 26 decision comes months after Flo and Eddie traveled to Tallahassee to argue that Florida has “very broad and all encompassing” common law property rights that include the ownership of audio recordings — including the hotly debated “pre-1972” recorded works that have different protection afforded to them. Pre-1972 recordings are not covered under Federal Copyright law.

Flo & Eddie were represented in Florida Supreme Court by Gradstein & Marzano P.C..

The victor in this case? SiriusXM.

“The crucial question presented is whether Florida common law recognizes an exclusive right of public performance in pre-1972 sound recordings,” Justice Charles Canady wrote for the court. “We conclude that Florida law does not recognize any such right and that Flo & Eddie’s various state law claims fail.”

Flo & Eddie brought suit against Sirius in federal district court in Florida on
Sept. 3, 2013, claiming that Sirius’s broadcasting of Turtles songs constitutes
unauthorized public performances of the recordings and that Sirius’s back-up and
buffer copies constitute unauthorized reproductions of the recordings.

It’s a tough loss for Henry Gradstein of Gradstein & Marzano, who told the Supreme Court justices that there is “no question” that in Florida, an artist owns his or her audio recordings.

But, it is another champagne-pouring occasion for the nation’s satellite radio operator, as Florida’s top judges reached a similar ruling to that of New York’s top judicial body.

In February, the New York Court of Appeals ruled that N.Y. state common law does not recognize a right of public performance for creators of pre-1972 sound recordings.

As a result, a reversal of a district court’s denial of Sirius XM’s motion for summary judgement occurred — bringing a victory to the satellite radio company in the Empire State.

This means that the only jurisdiction where Flo and Eddie are entitled to royalty payments is California — and that is thanks to a November 2016 pre-trial class action settlement reached with Sirius XM.