I’ve written periodic posts about Flo & Eddie since December 2014. As a brief refresher, the corporation Flo & Eddie owns the rights to the pre-February 15, 1972 sound recordings of The Turtles. Band members Mark Volman and Howard Kaylan own Flo & Eddie. Sirius XM Radio, Inc. operates nationwide as a satellite and Internet radio provider. Flo & Eddie sued Sirius in federal courts in California, New York and Florida. Flo & Eddie claimed that Sirius violated Flo & Eddie’s ownership rights in its pre-1972 sound recordings by broadcasting recordings and making buffer and backup copies of Turtles performances without a license or authorization. Appeals in the Flo & Eddie v. Sirius cases are pending before the Second, Ninth, and Eleventh Circuits.
Flo & Eddie’s cases against Sirius arise from the lack of federal copyright protection for pre-1972 sound recordings. Sound recordings did not receive protection under the Copyright Act until February 15, 1972, although musical compositions and lyrics have always been protected. If pre-1972 sound recording rights are protected at all, it is under state copyright law. Although the district courts in California and New York ruled in Flo & Eddie’s favor on its state law claims, the Southern District of Florida granted summary judgement in Sirius’ favor. On appeal in the Florida case, the Eleventh Circuit Court of Appeals determined that the state law questions had not been decided by Florida state courts. The Eleventh Circuit certified four questions to the Supreme Court of Florida for that court’s guidance on Florida state law.