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Ninth Circuit Finally Resolves Pre-1972 Sound Recordings Royalties Issue

The Ninth Circuit ruling in Flo & Eddie may turn out to be last stop on the long and winding road the owners of pre-1972 recordings have traveled in their efforts to obtain compensation for public performances through platforms like Sirius.


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In the opening paragraph of Flo & Eddie v. Sirius XM Radio, No. 17-55844, decided Aug. 23, 2021, the Ninth Circuit aptly described the “patchwork quilt of federal and state copyright laws” governing pre-1972 sound recordings as a “ball of confusion,” borrowing the title of a classic 1970 Temptations record. (The remainder of the Ninth Circuit’s opinion incorporates the titles of many other pre-1972 recordings into its analysis, all shown in boldface type in the discussion that follows.) The opinion resolves an eight-year, multi-Circuit class action brought by owners of pre-1972 recordings (collectively, Flo & Eddie) against satellite radio provider Sirius XM, with plaintiffs asserting — ultimately without success — a right to be paid royalties for defendant’s past digital transmissions of their pre-1972 recordings.

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