“Exclusive Ownership” Does NOT Include Public Performance Right Under CA Statute; 9th Cir

Flo & Eddie, Inc. v Sirius XM Radio, Inc., 17-55844, 2021 WL 3716788 [9th Cir Aug. 23, 2021]

In the long running “Flo & Eddie” case involving pre-1972 sound recordings and satellite radio, the 9th Circuit holds that the California statute providing state-law copyright protection for pre-1972 sound recordings does not include a right of public performance. Taking a “textualist” approach to the statutory language, the decision is based upon a historical analysis of state law copyright protection: “the term ‘exclusive ownership’ retains a historical meaning that predates the Federal Copyright Act and differs from the modern dictionary's definitions of those two separate words.” The court held that the common law meaning of “exclusive ownership” in the 19th century did not include the right of public performance, and therefore presumed that California did not intend to upend the common law when it used the same language in its statute (amended at various times).

Thus, if “exclusive ownership” under California's common law in 1872 did not include the right of public performance, then that original meaning of “exclusive ownership” remains the only legal meaning unless the California legislature expressly changed it. Flo & Eddie does not point to any evidence suggesting that the California legislature intended to upend the common law understanding of “exclusive ownership” when it enacted its first copyright statute in 1872.

Flo & Eddie, Inc. v Sirius XM Radio, Inc., 17-55844, 2021 WL 3716788, at *8 [9th Cir Aug. 23, 2021]

The lower courts’ grant of summary judgment was reversed and the case was remanded for entry of a judgment consistent with the parties’ contingent settlement agreement.