Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 17-55844 (9th Cir. 2021)Annotate this Case
When an AM/FM radio station plays a song over the air, it does not pay public performance royalties to the owner of the original sound recording. Digital and satellite radio providers like Sirius, however, must pay public performance royalties whenever they broadcast post-1972 music. Before a 2018 amendment to the copyright law, 17 U.S.C. 1401(b), they did not have to pay royalties for playing pre-1972 music under federal law. State law was less clear.
The district court held that California law, which grants copyright owners an “exclusive ownership” to the music, creates a right of public performance for owners of pre-1972 sound recordings and that Sirius must pay for playing pre-1972 music. The Ninth Circuit reversed, looking to the common law in the 19th century when California first used the phrase “exclusive ownership” in its copyright statute. At that time, no state had recognized a right of public performance for music, and California protected only unpublished works. Nothing suggests that California upended this deeply-rooted common-law understanding of copyright protection when it used the word “exclusive ownership” in its copyright statute in 1872, so “exclusive ownership” does not include the right of public performance.
Court Description: Copyright / California Law. The panel reversed the district court’s grant of partial summary judgment to Flo & Eddie, Inc. in its action against Sirius XM satellite radio, seeking royalties for pre-1972 songs that were played on Sirius XM without permission or compensation. The complaint alleged a violation of California common law and statutory copyright law. Flo & Eddie control the rights to the songs of the rock band the Turtles. Relying on California’s copyright statute, Cal. Civil Code § 980, Flo & Eddie argued that California law gave it the “exclusive ownership” of its pre-1972 songs, including the right of public performance, which required compensation whenever their copyrighted recordings were publicly performed. The panel held that the district court erred in concluding that “exclusive ownership” under Section 980(a)(2) included the right of public performance. Without contrary evidence, the panel presumed that California did not upend the common law in establishing “exclusive ownership” in the statute. The panel remanded for entry of judgment consistent with the terms of the parties’ contingent settlement agreement. FLO & EDDIE V. SIRIUS XM RADIO 3