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November 2017

Miami Team Prevails in Appellate Case Before the Florida Supreme Court On Behalf of Sirius XM Radio, Inc.

Gordon Rees Scully Mansukhani Miami partner David M. Gersten and associate Christopher A. Noel recently prevailed in an appellate case before the Florida Supreme Court where they represented Sirius XM Radio, Inc. Many legal news outlets such as the ABA Journal, Law360 and reported on this unanimous decision (subscriptions may be required).

Flo & Eddie, Inc. initiated litigation when it sued Sirius XM in federal courts in New York, California, and Florida. Flo & Eddie is a company formed by two of the founding members of the famed 1960s rock band, The Turtles. The suits were based on claims alleging copyright protection for pre-1972 sound recordings. However, because sound recordings were not subject to federal copyright law until February 1972, Flo & Eddie sought royalties for Sirius XM’s use of The Turtles’ pre-1972 sound recordings under state common law.

Gordon & Rees's attorneys represented Sirius XM in the U.S. District Court for the Southern District of Florida, where they obtained summary judgment in favor of Sirius XM. Thereafter, Flo & Eddie appealed the summary judgement order to the U.S. Court of Appeals for the Eleventh Circuit. 

Upon review of the case, the Eleventh Circuit issued four certified questions to the Florida Supreme Court concerning whether Florida recognized common law copyright protection for pre-1972 sound recordings. The Eleventh Circuit needed this clarification because there was no Florida case law addressing whether Florida common law provides copyright protection for any pre-1972 sound recordings.

In its October 26, 2017 opinion, the Florida Supreme Court determined that Florida common law does not recognize an exclusive right of public performance for pre-1972 sound recordings. Justice Charles Canady, writing for the Court, elaborated that “Flo & Eddie essentially ask[ed] this [C]ourt to recognize an unworkable common law right in pre-1972 sound recordings that is broader than any right ever previously recognized in any sound recording.” The Court continued, “[t]o recognize such a right for the first time today would be an inherently legislative task. Such a decision would have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit.”

This case against Sirius XM is just one of many ongoing cases brought against satellite and online radio broadcasters around the country. The suits claim hundreds of millions of dollars in royalty rights based on largely-untested state common law copyright protection for pre-1972 recordings.   

To read the Flo & Eddie, Inc. v. Sirius XM Radio, Inc. opinion in full, please click here.

Gordon & Rees is a national litigation and business transactions firm with more than 800 lawyers in 46 offices across the United States. Our lawyers provide full service representation to public and private companies ranging from the Fortune 500 to start-ups. Founded in 1974, Gordon & Rees is recognized among the fastest growing and largest law firms in the country and continues to climb the ranks of both The Am Law 200 and The National Law Journal. Additionally, in 2017 Law360 ranked the firm among the top 50 largest U.S. firms and The American Lawyer ranked the firm among the top 35 on its Diversity Scorecard.

David M. Gersten
Christopher A. Noel