Flo & Eddie's Other SiriusXM Lawsuits Seen Likely to Proceed Amid California Settlement
Top Florida and New York state court reviews of the appeals of Flo & Eddie's lawsuits against SiriusXM are likely to proceed despite a proposed settlement of a similar lawsuit in California, though the settlement may influence the outcome of those reviews, industry lawyers said in interviews. Flo & Eddie, owners of The Turtles' “Happy Together” and the rest of the band's music, seek compensation from Sirius for performances of the Turtles' pre-’72 recordings. The Florida and New York courts are reviewing appeals of the Flo & Eddie lawsuit that are currently on hold in the U.S. courts of appeals for the 2nd and 11th circuits amid questions about whether those states’ laws recognize a right to pre-1972 sound recording performance royalties (see 1608050059 and 1610190053).
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Flo & Eddie was expected to have formally filed a motion Monday evening asking Judge Philip Gutierrez to approve a settlement in U.S. District Court in Los Angeles ending the yearslong suit against Sirius on claims that California state law recognizes the pre-’72 performance right. Gutierrez ruled in 2014 that California’s copyright laws allow for a pre-’72 performance right (see 1410060047). A new trial was set to determine what damages Sirius owed after reaching a $210 million settlement with record labels over pre-1972 royalties (see 1506260048).
Flo & Eddie lawyer Henry Gradstein confirmed to us that he would have filed the motion late Monday but declined to comment further on the case before the filing. It’s unlikely many details of the settlement’s terms will appear in Flo & Eddie’s motion, but the accord will likely involve a monetary amount that includes payment for past performances of Flo & Eddie’s catalog, and a direct payment agreement for future performances, said Jay Rosenthal, a Mitchell Silberberg lawyer who represents music industry content owners. The settlement may also include language clarifying Sirius didn’t admit to any wrongdoing in agreeing to a resolution of the the proceeding, Rosenthal said. Sirius didn’t comment.
The pact raises the specter of a possible “domino effect” that results in settlements of the Florida and New York lawsuits, said IP and entertainment lawyer Dina LaPolt. Sirius may not “want to go to trial on this issue because they’d probably lose” under both states’ laws, she said. Wilkinson Barker broadcast attorney David Oxenford said he doesn’t believe a settlement of Flo & Eddie’s California lawsuit will necessarily mean the Florida and New York proceedings will move in a similar direction since none of the suits deals with an overarching national law. The Flo & Eddie lawsuits are predicated on interpreting state laws as allowing for a pre-’72 performance right, so “it’s possible for California law to allow for performance royalties” and for the Florida and New York courts to not find a similar right in their states’ laws, Oxenford said.
The California settlement will probably help the musicians' arguments in Florida and New York but “it’s not an absolute certainty,” Rosenthal said. Any settlement in another jurisdiction will impact the case in other courts, but the Flo & Eddie lawsuits all deal with very complicated state-specific issues, he said. “There’s a sense that there was much more history in the 9th Circuit” on copyright and music licensing issues that would make it more likely that the circuit court would agree with Gutierrez’s interpretation of California law “that Sirius didn’t want to take the risk” of moving forward with the case there, Rosenthal said. “You can’t say that just because there was a settlement in California that this will be a template for the other lawsuits."
The Florida Supreme Court’s review of Flo & Eddie’s lawsuit continued Monday, when the court granted requests by NAB, iHeartMedia and Pandora to file amicus briefs in support of Sirius. The streaming service argued "the author of a creative work has common law rights in the work only so long as it remains unpublished -- common law rights in a creative work expire upon its distribution to the general public.” That interpretation directly contradicts Flo & Eddie’s argument that “even though its pre-1972 recordings have been sold to the public without apparent restriction for decades, plaintiff has maintained a common law copyright in the recordings that allows plaintiff to control all performances of those lawfully purchased recordings,” Sirius said. The Florida Bar’s Entertainment, Arts and Sports Law Section previously filed an amicus brief in support of Flo & Eddie.