Entertainment & Sports
Nov. 8, 2016
Flo & Eddie court battle continues next week
The duo, band members of the Turtles, seek to protect pre-1972 song owners.
Daily Journal Staff Writer
As band members of the '60s pop band the Turtles and Sirius XM Radio await appeals in Florida and New York respectively, the multi-state court battle over royalties owed to pre-1972 song creators returns to California court next week.
Some attorneys observing the case say that the upcoming trial for damages, to be paid to a yet unknown number of class members whose songs were played on Sirius XM Radio within three years of the suit's 2013 filing, could prove to be a pivotal moment in resolving a sprawling dispute.
Plaintiffs seek monetary damages, though the exact amount has been redacted from court filings. The request is based on Sirius XM's gross revenues from California subscribers that are attributable to the company's use of pre-1972 recordings by class members.
Band members Howard Kaylan and Mark Volman, doing business as Flo & Eddie Inc., first claimed in a class action filed in August 2013 in the Central Distrcit that defendant Sirius XM Radio Inc.'s use of their songs without compensation was a violation of their property rights. Flo & Eddie Inc v. Sirius XM Radio Inc et al, 13-CV5693. (C.D. Cal., filed Aug. 03 2013).
Within weeks, the duo filed nearly identical complaints in New York and Florida.
The 1976 Federal Copyright Act only deals with sound recordings after Feb. 15, 1972, leaving it to state laws to regulate pre-1972 recordings.
U.S. District Judge Philip Gutierrez of the Central District granted a summary judgment motion against Sirius XM in 2014, noting that under California law pre-1972 creators are granted "exclusive ownership" to publicly perform the recording, with an exception made for artists who cover the song.
If the Legislature intended for more exceptions, Gutierrez reasoned, it would have noted so explicitly.
The Turtles' California victory was followed shortly thereafter by a November 2014 ruling in New York against Sirius XM. The streak of court victories ended in June 2015, when a Florida judge ruled that Sirius XM was not liable for broadcasting Turtles recordings without licenses.
James Sammataro, managing partner of Stroock & Stroock & Lavan LLP's Miami office who is not involved in the case, said the upcoming court battle could be pivotal. A victory for the plaintiff could mark the Florida ruling as something of an aberration, he said, which could lead to more lawsuits being filed in other districts.
"Two of the most important districts are kind of in agreement that there is a property right and a royalty owed," Sammataro said. "If you're a plaintiff lawyer and you get a hit here ? why would you stop?"
Sammataro noted the upcoming trial exclusively relates to damages, as Gutierrez's previous order already addressed liability.
Arguing exactly how class members have been harmed will be a central and complicated issue, Sammataro said, given that the defense could argue that playing older and obscure music from bands like the Turtles could help give the artists "an afterlife."
For similar reasons, Sammataro said a ruling overwhelmingly in the plaintiff's favor could actually do such artists harm.
"Maybe when sales are dwindling, there's the thought process that we need to kind of turn over every stone and squeeze every ounce of the sponge," Sammataro said. "But why would I play a pre-1972 song when I wouldn't have to pay for a 1976 song? It will impact programming decisions."
Flo & Eddie are represented by Henry Gradstein and other attorneys from Gradstein & Marzano PC, while Sirius XM is represented by a team of lawyers led by O'Melveny & Myers LLP partner Daniel Petrocelli.
Gradstein and Petrocelli did not respond to requests for comment.
William Hochberg, a Greenberg, Glusker, Fields, Claman & Machtinger LLP partner who is not involved in the case, noted that the trial will make November a busy month for Petrocelli as he prepares to represent Donald Trump in an unrelated fraud case against Trump University.
"Between the Turtles and Trump trials, the song 'Happy Together' sounds jarringly out of tune for Petrocelli," Hochberg said. "Especially with the traffic jams on the freeway between Los Angeles and San Diego."
steven_crighton@dailyjournal.com
Steven Crighton
steven_crighton@dailyjournal.com
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com