Florida’s Common Law Copyright Conundrum: Singing the “Repeal Me, Repeal You” Blues

Stephen Carlisle September 29, 2016

With all apologies to George Harrrison, it’s time to sing the “repeal me, repeal you” blues in Florida.

This comes up in the latest strange twist in Flo and Eddie’s fight against Sirius XM, which has been the subject of several previous blog posts. In these cases, Flo and Eddie have claimed that common law copyright, not federal copyright, protects their sound recordings and this includes the right of public performance under a variety of State laws. ¹

Recall, that after winning in California and New York, Flo and Eddie lost their claim in Florida ² after a Federal Judge ruled that:

“There is no specific Florida legislation covering sound recording property rights…[i]f the Court adopts Flo and Eddie’s position, it would be creating a new property right.” ³

The Eleventh Circuit Court of Appeals was similarly at a loss and punted the issue over to the Florida Supreme Court, ⁴ where the issue is now being briefed.

And this is where things get really tricky. Turns out, the Federal Judge was wrong.

The Florida Legislature did recognize the existence of common law copyright in sounds recordings. It did so all the way back in 1941. It did this by repealing all such common law rights then existing. ⁵ The title of Section 543.02 is titled “Common law rights abolished.” Its text states in part:

“[A]ll asserted common law rights to further restrict of to collect royalties on the commercial use made of any such recorded performances by any person are hereby abrogated and expressly repealed.”

But wait, they’re not done yet! The very next section, 543.03 states:

“The sole intendment of this enactment is to abolish any common law rights attaching to phonograph records and electrical transcriptions, whose sole value is their use, and to forbid further restrictions of the collection of subsequent fees and royalties on phonograph records and electrical transcriptions whose sole value is in their use, and to forbid further restrictions of the collection of subsequent fees and royalties on phonograph records and electrical transcriptions by performers who were paid for the initial performance at the recording thereof.”

In plain language, if common law copyright did not protect sound recording performance rights under Florida law, no rights exist to repeal or abrogate, and no action by the Legislature would have been necessary.

The reason why the legislature effected the repeal of the common law in 1941 was a reaction to  Waring v. WDAS Broadcasting Station, Inc. ⁶ in which the Supreme Court of Pennsylvania ruled that not only was there a common law copyright in a sound recording but that common law right included the right of public performance.

“[T]he plaintiff had common-law rights of property in his orchestra’s renditions of the songs, and, second, that there is no logical or practical reason why the restriction placed upon the use of the records should not be enforced in equity…” ⁷

North Carolina and South Carolina passed similar legislation to Florida’s in reaction to the Waring decision. Oddly enough, these laws are still on the books, but apparently not being enforced. ⁸

Florida’s repeal of common law copyrights in sound recordings lasted until July 1, 1977, when the Florida Legislature repealed almost all of Chapter 543. That’s right. They repealed the repeal. ⁹

This explains why there is so little case law on common law copyright of sound recordings in Florida.  The Florida Legislature wrote them out of the law books for 36 years.

So, now that Florida repealed the repeal, does this mean that the common law rights have been revived?

Apparently it does. The Supreme Court of Florida has ruled this is true on a couple of occasions.

“[W]hen a statute changing the common law is repealed, the common law is restored to its former state…  Nor does section 62 of the Revised Statutes, providing that no statute of this state which had been repealed shall ever be revived by implication, prevent such restoration of the common law.” ¹⁰

About 60 years later, it said the same thing again.

““Upon repeal of the statute in 1955, the common law of the state as it existed prior to the act was revived.” ¹¹

This would have the effect even if sound recordings were distributed during the period of the repeal. A Federal Court Judge directly addressed this point:

“The Court agrees that repeal of a statute does not divest one of a defense which arose under the former statute. Thus, arguably, anyone who relied on § 543.02, Fla.Stat., to protect against a claim of common law copyright prior to July 1, 1977 may be protected.

However, since this is an action seeking damages and injunctive relief for future wrongdoings, Defendants have failed to state a reason why this Court should reverse its prior ruling that § 543.02 cannot preclude this action.” ¹²

So, now that it appears that common law rights in sound recordings did exist in Florida, have been revived and are currently enforceable, there remains one more hurdle: did Flo and Eddie lose their rights by “publishing” their sound recordings in the State of Florida? The answer appears to be no. Here is the Court in the Garrod case interpreting Florida law:

“Thus, because of the unique nature of the recording business, and the fact that there was no simple method of protecting record producers’ interests until phono-records were protected by the Sound Recording Act of 1972… CBS did not lose its common law copyright through publication by distribution of its records.” ¹³

Courts in New York, ¹⁴ California ¹⁵ and North Carolina ¹⁶ have come to the same conclusion.

Finally, the repeal by Florida became effective on July 1, 1977, a full six months before the effective date of the then “new” Copyright Act of 1976, which became effective on January 1, 1978. ¹⁷ So, the rights of Flo and Eddie would have been fully revived prior to the effective date of Section 301(c) of the Copyright Act which provides that:

“With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067.”

Does this mean Flo and Eddie have achieved a “reversal of fortune” with regards to their rights in the State of Florida?

Stranger things have happened.