In the opening paragraph of Flo & Eddie v. Sirius XM Radio, No. 17-55844, decided Aug. 23, 2021, the Ninth Circuit aptly described the "patchwork quilt of federal and state copyright laws" governing pre-1972 sound recordings as a "ball of confusion," borrowing the title of a classic 1970 Temptations record. (The remainder of the Ninth Circuit's opinion incorporates the titles of many other pre-1972 recordings into its analysis, all shown in boldface type in the discussion that follows.) The opinion resolves an eight-year, multi-Circuit class action brought by owners of pre-1972 recordings (collectively, Flo & Eddie) against satellite radio provider Sirius XM, with plaintiffs asserting—ultimately without success—a right to be paid royalties for defendant's past digital transmissions of their pre-1972 recordings.

At the time the action was commenced in 2013, such older recordings were protected only by state law, not by the federal Copyright Act. Thus the federal statutory royalty enacted for digital performances of sound recordings in 1995, under § 11, did not benefit pre-1972 recordings, which (coincidentally?) are among the most valuable hit recordings of all time. A subsequent statute, the so-called CLASSICS Act, passed in 2018 as the Flo & Eddie litigation was well underway, provides a federal digital performance royalty for pre-1972 recordings, just as plaintiffs sought to do under state law, and also preempts previously-filed claims under the state laws under which plaintiffs were suing. But for reasons perhaps unique to this case, the CLASSICS Act did not resolve or preempt the parties' dispute, which remained subject to state law. A ball of confusion indeed.

Discussion

The Flo & Eddie plaintiffs had owned the master recordings at issue since 1971. In 2013, they approached Sirius XM to demand royalties for digital performances, just as owners of more recent, federally-protected recordings were receiving under §114. Sirius declined, and rather than just let it be, Flo & Eddie commenced actions under state law in New York, Florida and California. New York and Florida recognize only common-law protection for pre-1972 recordings. California has a statute, Cal. Civ. Code §980, but the operative language in that statute—"exclusive ownership"—dates back to a precursor enactment from 1872. Thus the court began by looking to the common law origins of that act, to determine whether "exclusive ownership" would have been understood by the enacting legislature to include a right of public performance circa 1872.