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Suit over old rock ‘n’ roll heading to Florida Supreme Court

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The state’s highest court has been pulled into a case over what could be “multiple millions of dollars” owed for old rock ‘n’ roll.

The 11th U.S. Circuit Court of Appeals on Wednesday certified questions of state law to the Florida Supreme Court in a nearly 3-year-old class-action suit by original members of The Turtles, a 1960s band. Their most famous hit is “Happy Together.”

Howard Kaylan and Mark Volman, later known as Flo & Eddie, filed suit in California, New York and Florida against satellite radio operator Sirius XM.

That action came after that company stopped paying artists to play their music recorded before 1972, according to a blog post by Nova Southeastern University “copyright officer” Stephen Carlisle.

Federal copyright protection is only available for recordings made after February 15, 1972. “Pre-1972 sound recordings (or ‘pre-72s’) are protected by a patchwork of state and common laws,” according to another blog post from a Chicago law firm.

If Flo & Eddie win, Sirius XM, internet music service Pandora and others “would owe damages not only to (them), but potentially all other owners of pre-1972 sound recordings … includ(ing) every recording ever made by The Beatles, The Doors, Jimi Hendrix and Janis Joplin, not to mention Glenn Miller and Tommy Dorsey,” Carlisle wrote.

“Throw in the fact that these channels operate 24 hours a day, seven days a week, … (then) damages in the multiple millions of dollars is a forgone conclusion,” he added.

It would be a come-from-behind win, at least in Florida. A federal judge already sided with Sirius XM and granted a summary judgment in favor of the company. Such decisions allow parties to win a case without a trial. Flo & Eddie appealed. 

The federal appellate court now is asking the state Supreme Court to opine on some Florida-specific legal questions, including:

Does Florida common law recognize copyright claims in “sound recordings”? (Common law evolves from decades of court decisions, rather than laws passed by the Legislature.)

If so, does widespread popularity and playing of a piece of music cancel out copyright claims in that music?

Does a back-up or “buffer” copy made by a computer system constitute the unauthorized copying of music?

The appellate court’s opinion added that, as far as it could tell, the closest copyright case had to do with “another type of creative performance: magic tricks.”

“(T)here is at least a significant argument that Florida common law may recognize a common law property right in sound recordings,” the court said. “Sound recordings, no less than magic tricks, are ‘intellectual productions’ that are ‘created by heavy investments of time and labor.’ “

But that same case, from 1943, also held that the plaintiff had performed his signature act “before many audiences since 1935.” He was known for making cocktails and soft drinks appear from seemingly empty containers.

“Thus, ‘the trick or stunt became the property of the general public,’ ” and “Think-A-Drink Hoffman” couldn’t claim copyright protection, the opinion said.

“Kaylan characterized The Turtles’ recordings, including such ‘iconic’ hits as ‘Happy Together,’ as ‘clearly part of world history and not just American history,’” the opinion said.

That song, for instance, was used as the music over the opening credits for the 2015 animated movie, “Minions.” It had worldwide gross receipts of close to $1.2 billion as of this January, according to the Internet Movie Database.

Before joining Florida Politics, journalist and attorney James Rosica was state government reporter for The Tampa Tribune. He attended journalism school in Washington, D.C., working at dailies and weekly papers in Philadelphia after graduation. Rosica joined the Tallahassee Democrat in 1997, later moving to the courts beat, where he reported on the 2000 presidential recount. In 2005, Rosica left journalism to attend law school in Philadelphia, afterwards working part time for a public-interest law firm. Returning to writing, he covered three legislative sessions in Tallahassee for The Associated Press, before joining the Tribune’s re-opened Tallahassee bureau in 2013. He can be reached at jim@floridapolitics.com.

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