Three Strikes and You’re Out: Ninth Circuit Holds California Law Does Not Grant Right of Public Performance in Pre-1972 Sound Recordings

On August 23, 2021, the Ninth Circuit Court of Appeals issued a ruling in Flo & Eddie, Inc. v. SiriusXM Radio, Inc.—the last of three lawsuits brought against the digital broadcaster in connection with its allegedly infringing public performances of sound recordings by the legendary rock band the Turtles. Reversing the district court’s partial summary judgment ruling, the Ninth Circuit held that California law did not grant any right of public performance in sound recordings created prior to 1972. This ruling, which repeats a chorus sung in similar decisions by the Second and Eleventh Circuits, is the third consecutive appellate win for digital music services arising out of a series of similar state law copyright infringement cases filed throughout the country by Flo and Eddie of the Turtles. 

Sound recordings created before 1972 historically have not enjoyed any protection under federal copyright law. “Musical works”—the underlying musical compositions performed in those recordings—have enjoyed at least some federal copyright protection since 1831. In 1909, Congress expanded federal copyright protection for musical compositions to include an exclusive public performance right. It was not until 1971 that Congress extended any federal copyright protection to the recordings of those musical works. This protection took effect only for sound recordings created on or after February 15, 1972, and did not include any public performance right so that music users such as broadcasters would not be disrupted by a new royalty obligation. At that time, Congress made clear that the new prospective sound recording copyright did not preempt any state law protections for pre-1972 sound recordings to the extent they existed. In 1995, Congress expanded federal protection for post-1972 sound recordings, creating a limited public performance right for digital audio transmissions only. Terrestrial AM/FM radio broadcasters still pay no royalties for the public performance of sound recordings (although they do pay public performance royalties for the underlying musical compositions). 

Flo & Eddie, Inc., the appellant in this case, owns the master sound recordings of various musical performances recorded by The Turtles prior to 1972. SiriusXM had played the Turtles’ pre-1972 recordings on its satellite and internet radio services—a use that Flo & Eddie had never expressly licensed and for which it received no royalties. In 2013, Flo & Eddie brought suits against SiriusXM in Florida, New York and California, asserting (among various other state law claims) that it had the exclusive right of public performance in its pre-1972 sound recordings under the laws of each state and that SiriusXM had infringed that right. Those claims were rejected in the New York and Florida cases in rulings affirmed by the Second and Eleventh Circuits. 

In the California action, Flo & Eddie initially prevailed, with the trial court finding that California Civil Code Section 980(a)(2)—a statute first enacted in 1872 and granting rightsholders an “exclusive ownership” of copyrighted materials—provided sound recording owners with an enforceable right of public performance. This week, the Ninth Circuit reversed that ruling, finding that nothing in California’s common or statutory law created such a right of public performance in pre-1972 sound recordings and that the district court has misinterpreted the California statute, which the Ninth Circuit held granted protection only against post-sale copying and reproduction of pre-1972 sound recordings, not the public performance of those recordings. In so ruling, the court noted that no public performance right for copyright had been recognized in 1872 and that neither common law nor any subsequent amendments to the California statute had ever explicitly recognized such a right in pre-1972 recordings.

The Ninth Circuit’s decision is now the third consecutive appellate ruling to reject the claim that any state statutory or common law right of public performance existed in pre-1972 sound recordings and were violated. It is an important step toward resolving any uncertainty surrounding liability or royalty obligations for music services that have, in the past, made digital performances of pre-1972 sound recordings. 

Moving forward, however, the practical effect of this decision may be minimal, as the legal landscape regarding pre-1972 sound recordings has changed significantly since Flo & Eddie first filed its cases. In 2018, Congress passed the Music Modernization Act, which extended copyright infringement remedies to the unauthorized performance of pre-1972 recordings, allowing rightsholders to collect royalties for digital performances of such recordings. With federal recognition of a digital public performance right for pre-1972 recordings now enacted, the absence of state law public performance rights for those older recordings is no longer fatal to rightsholders’ ability to pursue royalties or infringement claims in connection with such performances.