by VVN Music
A judge in Florida for the 11th Circuit Court of Appeals, has tossed the Flo & Eddie Pre-1972 copyright case up to the state's Supreme Court but not before asking some important, and at least one bizarre, question.
For years, services like Sirius/XM have refused to pay any performance royalties on recordings made before early 1972 saying that there is no specific law currently on the books that requires them to do so. Mark Volman and Howard Kaylan, also known as Flo & Eddie of The Turtles, brought suit against the satellite service in a number of state courts in an attempt to establish that they had "common law" copyrights to their music recorded and released prior to the cutoff date.
The pair won their cases in California and New York but lost in Florida where the court said that there was no state law that addressed sound recording copyrights.
Today, judge R. Lanier Anderson punted by moving the case to the Florida Supreme Court but not before offering some opinions on the case.
Anderson admitted that there could be a case made for "common law" copyright in the realm of sound recordings; however, and this is where things get bazaar, he then brought up a 1943 case of Glazer v. Hoffman where a magician claimed ownership of a particular trick and sought to stop another magician from using it.
Because the magician bringing suit spent time in developing and perfecting the trick, the court admitted that he had a "prima facie protection under Florida common law"; however, also in Florida law, that protection can be removed once a property is "published". In this case, the court in 1943 said that, through the originator's public performance of the trick, he had, in fact, "published" it and no longer held any rights. "The trick or stunt became the property of the general public and the defendant had a lawful right to use the same."
The judge then drew the following conclusion:
The Supreme Court of Florida has never had opportunity to address either the existence vel non of common law copyright protection for sound recordings or the doctrine of publication in the context of sound recordings. If the rule articulated in Glazer in the context of magic tricks—that there is copyright protection for the performance of the magic trick but that the performance before “many audiences” amounted to a publication for the purposes of divesting the common law property right in the magic trick—should be extended to sound recordings, there is a significant issue as to whether Flo & Eddie may have lost any common law property in its sound recordings by publication thereof and dedication thereof to the general public.So, it is possible that Flo & Eddie did have a "common law" copyright in the state of Florida for their Turtles recordings but they may have given up their rights when the released them to the public.
File that under "things we can't make up".
You can see the full court decision here.