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Another setback in Flo & Eddie’s legal battle for royalties on pre-1972 tracks

By | Published on Monday 20 February 2017

Flo & Eddie

Flo & Eddie’s bid to secure artists and labels royalties from online and satellite radio stations whenever tracks that pre-date 1972 are played received another set back last week.

As previously reported, although US-wide federal law Stateside says that online and satellite radio stations – unlike AM/FM stations – do have to pay royalties to artists and labels, recordings that pre-date 1972 are not covered by the federal copyright system. One-time Turtles Flo & Eddie argued that royalties were also due under the state laws that protect older sound recordings – even though those laws don’t specifically mention online and satellite radio, and AM/FM stations have never paid royalties on the older records either.

The duo sued in three states and won in California, where the court decided there probably was a general performing right for sound recordings under Californian state law, meaning broadcasters technically need a licence to play copyright protected music. That ruling forced Pandora and Sirius XM to reach settlements with both the record industry and, in the latter’s case, with Flo & Eddie and any other heritage artists that would fall under the duo’s class action.

However, in New York, despite a judge there also initially siding with Flo & Eddie, just before Christmas an appeals court ruled against the duo, with one appellate judge noting that making Sirius liable for royalties on pre-1972 recordings would also mean AM/FM stations should have been paying money to artists and labels all these years. Not only have AM/FM stations never paid any such royalties, but no artists or labels have ever previously claimed them, making the lower New York court’s decision “illogical”, the judge said.

According to The Hollywood Reporter, in the wake of that ruling legal reps for Flo & Eddie went to the Second Circuit Appeals Court to argue “there was still an open question about whether Sirius XM had engaged in unfair competition”.

Last week the Second Circuit said that the ruling in December on the existence – or, actually, non-existence – of a performing right for sound recordings in New York State settled all elements of Flo & Eddie’s case there, and therefore a summary judgement should now be issued in Sirius XM’s favour.

The satellite broadcaster’s aforementioned settlement with Flo & Eddie acknowledged that the parties’ legal battles in New York and Florida were not yet complete, and therefore the pay out the media firm committed to make varied according to the conclusion of those lawsuits. Which means the rulings in New York should save the broadcaster millions, though – as also previously reported – there is also a dispute on quite how to interpret those rulings in the context of the settlement agreement.