A few months ago, we brought to your attention a case initiated by The Turtles, seeking royalties in New York for the unauthorized performance of their pre-1972 sound recordings. In that decision, the Court of Appeals of New York decided, on a question certified to it by the Second Circuit, that New York state law did not recognize a public performance right in pre-1972 sound recordings. We observed that other courts considering this issue, most notably the Supreme Courts of California and Florida (likewise on certified questions respectively from the Ninth and 11th Circuits) may decide likewise, namely, that under their own state laws, there is no public performance right in pre-1972 sound recordings. We now have the most recent pronouncement from the Florida Supreme Court, handed down on October 26, 2017, confirming our observation by failing to find a public performance right in pre-1972 sound recordings under Florida state law. The Court found that Florida never recognized such a right and that it would be inappropriate for a state court to create a new common law right that should normally be the province of the legislature.
Although the U.S. District Court for the Central District of California granted summary judgment in favor of The Turtles, finding that such a right existed under California state law, the Ninth Circuit certified this question in March 2017 to the California Supreme Court which has yet to rule. Because the California Civil Code arguably has an express provision that may be controlling, the California Supreme Court could potentially find a public performance right in pre-1972 sound recordings, putting California at odds with both New York and Florida, and potentially creating confusion in a marketplace that requires nationwide clearance. On the hand, the California Supreme Court could apply a similar public policy rationale that would deny such performance right protection under a California statute that is arguably ambiguous.
At this juncture, regardless of how the California Supreme Court decides this issue, only Congress can untie this Gordian Knot by extending federal copyright protection to pre-1972 sound recordings, thus providing a uniform system that reasonably balances the respective interests of both the owners and users of sound recording regardless of the happenstance of when they were actually recorded.