Breaking: Florida Supreme Court Rules That Oldies Recordings are Public Domain

Florida Supreme Court Rules That Oldies Recordings are Public Domain

So this complicates things a bit.  A bombshell decision from the Florida Supreme Court effectively says that recording copyrights didn’t exist before 1972.

Should oldie recordings enjoy copyright protection?

Absolutely not, according to a unanimous decision by the Florida Supreme Court.  Effectively, anything recorded before the year 1972 is in the public domain and can be used freely.  At least in the state of Florida.

The ruling was released to Digital Music News early this morning.

The unanimous decision strikes a serious blow against Howard Kaylan and Mark Volman, both members of the oldies rock band, The Turtles.  Kaylan and Volman, aka ‘Flo & Eddie,’ have been battling for payments on their pre-1972 for years.

+ Update: The California Supreme Court Will Soon Decide the Fate of Oldies Copyrights

On the other side, both Pandora and Sirius XM Radio have argued that recording royalties don’t apply to music released before 1972.  The reason?  There isn’t a consistent law protecting recordings prior to that date.

“We conclude that Florida law does not recognize any such right and that Flo & Eddie’s various state law claims fail.”

Prior to 1972, artists and labels simply relied on a patchwork of state laws to determine copyright.  But even after 1972, Congress left pre-1972 copyright decisions to the states.  And in the case of Florida, copyright protection for recordings simply didn’t exist.

“The crucial question presented is whether Florida common law recognizes an exclusive right of public performance in pre-1972 sound recordings,” the justices opined in a 35-page ruling (see below).

“We conclude that Florida law does not recognize any such right and that Flo & Eddie’s various state law claims fail.”

Keep in mind that none of this applies to the compositions themselves.  Broader copyrights have long applied to the underlying notes and lyrics, which comprise the publishing side of a song.  The other side, specifically the recorded version of that composition, was simply not protected until February 15th, 1972.

This is part of a broader legal war by the Turtles.  Accordingly, Florida’s decision doesn’t directly impact separate battles in states like New York and California.  But it certainly influences decisions in other critical US states, especially those with similar laws.  In effect, the Florida blow may trigger a domino effect against copyright protection for oldies.

The Turtles became internationally famous after the release of ‘Happy Together’.

The case is Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 827 F.3d 1016, 1018 (11th Cir. 2016). You can read the entire decision below.  

26 Responses

  1. Avatar
    Precision matters

    The article’s headline and first few paragraphs are overly broad and incorrect. Pre-72 recordings are not public domain in FL. The state maintains a piracy statute, so owners of sound recordings still enjoy protections with regard to reproductions.

    • Avatar
      Anonymous

      Sirius XM is satellite radio. I don’t think a satellite transmission implicates reproduction rights. It’s all performance.

    • Avatar
      Sum guy

      Maybe you should ask the author of the above article. He must be some kind of expert on this stuff.

      • Avatar
        A Lawyer

        Step back. Paul’s 100% right.

        Every song has (a) recording and (b) publishing (think the notes on paper from the composer).

        This ruling states: recordings are NOT protected under FL copyright, so hence public domain.

        On the above commenter: SiriusXM is not reproducing in its satellite streams, it is performing (you are not getting a copy while listening to SiriusXM in your car). Therefore pre 1972 it is public domain, nobody has to pay anything for it — at least in state of FL.

        • Avatar
          A Music/Copyright Attorney

          You must not have read the decision carefully. The state of Florida has a record piracy law. This law prohibits the sale of “bootleg” CDs (recordings) made prior to 1972. Page 19 of the opinion describes the FL state statute in detail. It is factually incorrect to say that pre-72 recordings are in the public domain.

          Thirty years later, shortly before Congress passed the Act of 1971—which provided copyright protection to post-1972 sound recordings solely in the context of the right to “reproduce and distribute” reproductions of the recordings, see Act of 1971, § 1, 85 Stat. 391—the Florida Legislature enacted its own record piracy law, albeit a criminal one. See ch. 71-102, § 1, at 255-56, Laws of Fla. (codified at § 543.041, Fla. Stat. (1971)). The new Florida law—which made no distinction between pre- and post-1972 recordings—made it a crime to “[k]nowingly and willfully, without the consent of the owner,” copy with the intent to sell or cause to be sold any sound recording on a “phonograph record, disc, wire, tape, film, or other article.”

        • Avatar
          Anonymous

          Lawyer: You are not reading the article right…and maybe you are. However, I read the actual case. Flo & Rider (Lol The Turtles’ founders) were claiming Sound Recording rights on music that was created prior to 72. A SR right covers the actual recording of a song, its particular sound or close to the original recorded sound to the degree that it would lead a reasonable person to believe there was a sample of the song used.

          However, in Florida there are no common laws protecting sound recording rights.

          The first thing to notice is that why would this matter be in the state court in the first place? The reason being is that common law is the law that has to be used on a sound recording claim for sound recordings prior to 72 because there were no such rights in existence under federal statute. Therefore one would have to prove that such right existed under the Florida common law.

          It was never an issue regarding performance rights on words and music. Sirius has to pay on those rights. But there was no protection on sound recording. Now if I covered that song and Sirius played it my version could be protected.

          Also, the method of transferring and storing the recording was not considered a reproduction. But I think that decision was made in a federal court.

    • Avatar
      A Music/Copyright Attorney

      Paul, see my notes below.Yes, the reproduction of a musical composition is often referred to as a mechanical. However, that has nothing to do with the reproduction of a sound recording. (Remember each song includes both copyrights). As noted below, FL law prohibits the unauthorized sale (ie. reproduction) of “oldie recordings” under their state criminal law.

    • Avatar
      A Music/Copyright Attorney

      Paul, see my notes below.Yes, the reproduction of a musical composition is often referred to as a mechanical. However, that has nothing to do with the reproduction of a sound recording. (Remember each song includes both copyrights). As noted below, FL law prohibits the unauthorized sale (ie. reproduction) of “oldie recordings” under their state criminal law.

      • Paul Resnikoff
        Paul Resnikoff

        OK, thanks (to the various attorneys) for clarifying the matter on piracy and recording reproduction. I didn’t realize that statute existed.

  2. Avatar
    dhenn

    This is complete bs! Florida strikes again. They should just rename it The Idiot State and be done with it!

  3. Avatar
    Goo Fee

    Too bad Charles Garrod passed away. Americas greatest bootlegger and his Florida based business issued hundreds of big band era LPs and cassettes, called “In Disco Order” on the Ajax label. Columbia records sued him and be was forced to stop

  4. Paul Resnikoff
    Paul Resnikoff

    Again, here’s what the ruling states: no recording created prior to 1972 has any copyright protection on it as this was not a rule in Florida. Once federal rules took over, recordings got protection under federal law, but not because of anything Florida did.

    You can do whatever you want with a recording in Florida if it was released prior to 1972! You can remix it, use it in a movie, broadcast it. The only tricky part is that it has to be within Florida (or whatever state rules similarly).

    • Avatar
      Anonymous

      Paul: the key language here is “recording.” There is no protection in Florida for recordings prior to 72. There is protection for the performance of words and music whether it comes from a sound recording or not.

  5. Avatar
    Big Don

    So let me get this straight let’s just say a oldies internet station play this stuff and the server they are using is in Florida it is legal to cast this stuff for now?

    • Paul Resnikoff
      Paul Resnikoff

      If that broadcast is received in Florida, yes. But also New York, which has ruled similarly. Other states may have to be adjudicated, though an upcoming decision by the Supreme Court of California could essentially close the debate.

    • Avatar
      Anonymous

      They still have to pay performance rights on the performance of the words and music but not an extra fee for the actual sound recording.

      • Avatar
        Eric

        Nobody had performance copyright on albums etc prior to 1972. Neil Young intentionally delayed the release of his Harvest album until that law went into effect. Songwriters did and do have copyrights owed for other people performing their music no matter when or where if public. Record companies prior to 1972 (London/Decca was one in particular) had a statement prohibiting public performance of their recordings written mostly on their classical record labels – as opposed to radio stations legally playing them paying ascap and bmi composer/songwriter’s royalties.

  6. Avatar
    John-Paul

    Ah, so the Beatles are in public domain now!
    I think there’s gonna be a whole lotta adjudicatin’ going on still.

  7. Avatar
    John Busse

    It’s Floriduh. What else one expect from the state that looks like a dangling shlong?

  8. Avatar
    Ruth DJ

    Don’t test Apple, they do NOT play when it comes to the Beatles. The cease and desist letter will only be the beginning of your misery.

  9. Avatar
    Julius Tajiddin

    This article is misleading. Prior to 72 everybody was paying performance royalties on records being played over the air based on the performance of a song’s words and music. After 72 record labels and/or artists could get paid on the performance of the actual recording in addition to the performance of words and music.

    Lately, artists and companies have tried to get sound recording fees on songs recorded prior to 72 under the common law, which would depend on a state’s common law rights.

    • Avatar
      Eric

      No. Songwriter and composers royalties were paid prior to 1972. Performance copyright didn’t exist before 1972, but Flo & Eddie’s lawyers were trying to get a court to say there was.

  10. Avatar
    Tommy Bruner

    When artists can no longer earn a living wage there will be no artists. The corporate power structure would like nothing more than to eliminate mediums that inspire people to think independently.