In a major victory for media and broadcast entities, the Supreme Court of Florida recently established that Florida law does not recognize exclusive copyright protections for sound recordings that were “fixed” before February 15, 1972. Sound recordings fixed after this date are governed by federal copyright law.

This decision arose out of a copyright infringement suit brought by Flo & Eddie, Inc., an entity that owns the rights to certain pre-1972 music recordings by famed rock band The Turtles, against a major satellite and internet radio broadcasting organization. In this suit, Flo & Eddie alleged that the organization improperly broadcasted and stored (i.e. recorded) back-up and buffer copies of a number of pre-1972 Turtles songs, including the band’s 1967 megahit, Happy Together.

This suit was brought before the Supreme Court of Florida to resolve four certified questions from the Eleventh Circuit, which the Supreme Court reduced to the key question of whether Florida recognizes “the exclusive right of public performance in pre-1972 sound recordings?” After conducting a thorough review of federal copyright law and Florida law, the court determined that “Florida common law has never previously recognized an exclusive right of public performance for sound recordings. To recognize such a right for the first time today would be an inherently legislative task.”

In holding that Florida does not recognize a common law public performance protection for pre-1972 sound recordings, the court reasoned that the protection being sought by Flo & Eddie as the owner of the sound recordings was contrary to the historic evolution of copyright law – i.e. Congress would not have deliberately made defined protections for post-1972 sound recording owners that have evolved over time if the broad level of public performance protection sought by Flo & Eddie for pre-1972 recordings existed at common law. The court also noted that Flo & Eddie has similar pending suits against the broadcaster in New York and California. As here, the New York Court of Appeals declined to recognize a common law public performance protection for pre-1972 sound recordings. However, Flo & Eddie was granted summary judgment on its public performance claim before a California court because California has statutory provisions addressing pre-1972 sound recordings. In discussing the California case, the Supreme Court of Florida noted that a suit brought by Flo & Eddie against a different broadcaster is pending before the Supreme Court of California on issues similar to those raised here, presumably limiting the impact of the prior decision.

After determining that there was no common law protection against public performances of pre-1972 sound recordings, the court addressed the remaining issues in the case. It first determined that the broadcaster’s practice of storing buffered and back-up copies of the Turtles pre-1972 recordings did not violate any common law right to exclusive reproduction (to the extent such right existed) held by Flo & Eddie. The court then rejected out of hand Flo & Eddie’s claims for unfair competition, misappropriation, common law conversion and/or theft because Flo & Eddie could not establish that it had common law rights that existed with regard to these recordings or that such rights, to the extent they existed, were violated.

Takeaway: Media and broadcast platforms that operate in Florida or provide services to Florida-based customers may broadcast sound recordings from before February 15, 1972 without concern for legal repercussions from the owner of the master sound recordings. However, media and broadcast platforms should take steps to ensure compliance with state and federal copyright statutes and ensure that the musical composition’s copyright owner (who may be different than the owner of the sound recording) has provided proper permissions or licensing for broadcasting the composition.