SiriusXM has won another battle in its ongoing fight with Mark Volman and Howard Kaylan of the Turtles: On Thursday, a Florida court unanimously sided with the satellite-radio giant over whether it has to pay the musicians royalties for pre-1972 sound recordings. The lawsuit, which the duo also filed in New York and California, accused SiriusXM of infringing on what the duo contends were its copyright by making “unauthorized public performances” (i.e. broadcasting) the duo’s hits with the Turtles.
Not long after Volman and Kaylan brought suit in 2013, the major labels sued as well, and in a 2016 settlement SiriusXM agreed to pay up to $99 million to a group of indies led by the duo and $210 million to the majors.
However, in December the New York State Supreme Court ruled that public performance rights are not protected by common law, and Thursday’s ruling upheld a previous decision that found nothing in Florida law addresses pre-1972 sound recordings. Volman and Kaylan had appealed that decision, which was sent to the state’s supreme court in the hopes that common law would recognize sound recordings as property. But state law “has never previously recognized an exclusive right of public performance for sound recordings,” Justice Charles Canady wrote in Thursday’s decision.
“To recognize such a right for the first time today would be an inherently legislative task. Such a decision would have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit,” Canady wrote.
The duo’s case in California is still pending.