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Flo & Eddie Inc. v. Pandora Media LLC

District court grants Pandora’s motion for summary judgment, dismissing claim by owner of pre-1972 sound recordings created by 1960s band The Turtles, holding that claims alleging violation of plaintiff’s reproduction rights in recordings under California law were barred by earlier rulings involving same plaintiff.

After nearly a decade of litigation, internet radio service Pandora Media defeated a lawsuit filed by Flo & Eddie Inc., the owner of sound recordings created by the 1960s band The Turtles, when the U.S. District Court for the Central District of California granted Pandora’s motion for summary judgment.  

Similar to other lawsuits that Flo & Eddie filed against internet and satellite radio providers, its lawsuit against Pandora claimed that Pandora was liable for the unauthorized public performance and reproduction of sound recordings that were fixed prior to Feb. 15, 1972. Pandora’s noninteractive internet radio services transmit sound recordings from Pandora’s servers to its users’ devices, making several copies of each recording in the process, including permanent archival and backup copies and ephemeral copies functionally necessary for the transmission of the recordings to users. Because pre-1972 sound recordings were not protected under federal copyright law at the time Flo & Eddie filed its lawsuit, its claims relied on the premise that it had the exclusive right to publicly perform and reproduce those sound recordings under California statutory and common law.  

Following the filing of this lawsuit, in December 2014, Pandora filed a special motion to strike, or anti-SLAPP motion, which was denied by the district court. Pandora appealed that decision to the Ninth Circuit, which certified to the California Supreme Court the question of whether California statutory or common law provides an exclusive right of public performance to owners of pre-1972 sound recordings. While that question was pending before the California Supreme Court, in 2018, Congress passed the Music Modernization Act, extending federal copyright protection to pre-1972 sound recordings, which caused the California Supreme Court to dismiss consideration of the Ninth Circuit’s question.  

Following remand of the case, Pandora filed a second anti-SLAPP motion that was also denied by the district court in October 2020. The district court held, among other things, that the Music Modernization Act does not apply retroactively to preempt plaintiff’s state-law claims. (Read our summary of that decision here.) Again, Pandora appealed to the Ninth Circuit. While that appeal was pending, the Ninth Circuit issued a ruling in a similar case filed by Flo & Eddie against satellite radio provider Sirius XM, holding that under California law, owners of pre-1972 sound recordings have an exclusive right to reproduce the sound recordings, but not an exclusive right to publicly perform them.   

In June 2022, the Ninth Circuit affirmed the district court’s denial of Pandora’s second anti-SLAPP motion and directed the district court to consider expedited motion practice “on the legal validity of Flo & Eddie’s claims in light of intervening precedent” in the Sirius XM ruling. In September 2022, Flo & Eddie filed an amended complaint against Pandora, relying solely on Pandora’s purported violation of Flo & Eddie’s exclusive reproduction right (not its public performance right), in light of the Sirius XM ruling. Shortly thereafter, Pandora filed a motion for summary judgment.

The district court stated it was “inclined to agree” with Flo & Eddie, stating: “It is commonly understood that one infringes a copyright owner’s reproduction right by making one or more unauthorized copies or phonorecords ‘even if [they are] used solely for the private purposes of the reproducer or even if the other uses are licensed.’” However, it also observed, “courts across this country that have considered the issue do not agree, finding instead that Flo & Eddie’s copying claims rise and fall with the public performance right.” The court pointed to decisions in Flo & Eddie’s lawsuits against Sirius XM in New York and Florida. In one case, the Second Circuit concluded that the absence of a public performance right under New York law was also “determinative” of Flo & Eddie’s reproduction claims. In another case, the Florida Supreme Court held that Sirius XM’s backup or buffer copies of pre-1972 sound recordings (which were functionally equivalent to Pandora’s internal copies) did not infringe Flo & Eddie’s reproduction right because “the ultimate use of the internal copies” for public performance was “permissible.” 

As the court noted, both New York and Florida law should inform the outcome of this case under California law, for several reasons. For example, it observed, the Ninth Circuit had found those New York and Florida cases persuasive in holding that California common-law copyright protection prevents only unauthorized reproductions of copyrighted works, not unauthorized public performances. The Ninth Circuit also expressly recognized that California’s copyright law follows New York’s. Even more important in the court’s view, the Ninth Circuit’s decision affirming the denial of Pandora’s second anti-SLAPP motion referred to the New York and Florida cases as “intervening precedent,” warranting consideration of their effect on the legal validity of the claims against Pandora.

Finally, the district court also found support in the Ninth Circuit’s decision on Pandora’s first anti-SLAPP motion, wherein the Ninth Circuit stated that the answer to its certified question regarding whether California law provides for an exclusive right of public performance would “dispose of Flo & Eddie’s underlying claims”—meaning that a decision regarding the public performance right claims would necessarily dispose of the reproduction claims.

All of this led the court to believe that its “hands were tied” by the Ninth Circuit’s earlier rulings, which themselves relied in part on the New York and Florida precedents. Holding that “[i]n the absence of an exclusive right to publicly perform its pre-1972 sound recording, . . . Flo & Eddie has no viable copyright claim against Pandora,” the district court granted Pandora’s motion for summary judgment and closed the case.

Summary prepared by Frank D’Angelo and Kyle Petersen