Flo & Eddie Lose in Florida

When I learned Flo & Eddie filed lawsuits in California, New York and Florida seeking internet radio royalties for their pre-1972 Turtles recordings unprotected by federal copyright law, my first reaction was California and New York make a lot of sense. But Florida? The federal district court in Miami saw it the same way and threw the lawsuit out two days ago. Flo & Eddie, Inc. v Sirius XM Radio, Inc. Case No. 13-23182 (2015 SD Fla.)

Flo & Eddie and their legal team have been unstoppable against Sirius and Pandora until now. In addition to winning in the courtroom, they increased awareness of these arcane copyright issues beyond the music industry where checks are written and cashed based on how the law is interpreted.

Judge Darrin P. Gayles is a distinguished young jurist whose decision in the Florida case is frank and succinct. He surveys the Flo & Eddie lawsuits with almost the same claims in the three states and writes it “is common knowledge that California and New York are the creative centers of the Nation’s art world.”

So California has a statute recognizing and protecting pre-1972 sound recordings which is the cornerstone of Flo & Eddie’s wins there. New York has a well-developed group of common law copyright cases which supported the win there. But “Florida is different.”

Florida lacks specific legislation covering sound recording property rights. It has almost no judicial opinions interpreting common law copyright related to the arts. So the only way for Flo & Eddie to win was if the court created “a new property right in Florida…The Court declines to do so.”

The decision defers to the Florida legislature for that task. Softening the blow, it takes the time to knock down one of Sirius’ arguments which might have interfered with arguing for new legislation. It’s the only point Sirius gave up in the victory.

Flo & Eddie did not just lose an argument in the lawsuit, they lost the lawsuit. The decision says that and the online docket shows the lawsuit terminated as of Tuesday.

The Flo & Eddie team’s success up till now persuades me they had good reasons to sue in Florida, but the reasons aren’t obvious. If there are grounds for appealing this decision, they are not obvious either. Sirius was 0 and 2 going into this round, so they must be relieved. Appeals to the Ninth Circuit federal appeals court in California and the Second Circuit in New York will be the next venues in this playoff series. Now it’s 2 to 1.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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One Response to Flo & Eddie Lose in Florida

  1. Bill Keating says:

    Judge Gayles may have stated that in New York Judge McMahon was fortunate to have two cases to work with in deciding the New York case, but the Judge seemed quite a bit less confident in her ruling than when she made it. Her footnote, noted by Judge Gayles, that she had ruled on “a difficult legal question about which reasonable minds can differ.” The fact that the Court of Appeals agreed to take the interlocutory appeal means that they probably agree with that statement. What will they do with the District Court’s decision? Rule on it themselves or send the question to the Appellate Division or even the New York Court of Appeals?

    Like

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