March 15, 2017
As it suggested at a December oral argument that it might do, the Ninth Circuit today asks for the Supreme Court’s help in answering questions of state copyright law in a lawsuit brought by the band The Turtles. In Flo & Eddie, Inc. v. Pandora Media, Inc., the federal appeals court requests that the Supreme Court decide: “1. Under section 980(a)(2) of the California Civil Code, do copyright owners of pre-1972 sound recordings that were sold to the public before 1982 possess an exclusive right of public performance? 2. If not, does California’s common law of property or tort otherwise grant copyright owners of pre-1972 sound recordings an exclusive right of public performance?”
Flo & Eddie, Inc. (i.e., The Turtles), have been pursuing similar litigation around the country. (See, e.g., here [subscription] and here.) In two of those cases, the Eleventh Circuit has certified to the Florida Supreme Court and the New York Court of Appeals answered for the Second Circuit questions of state copyright law that are related to those the Ninth Circuit is now asking of California’s high court. Noting these similar cases, the Ninth Circuit states, “We agree with our sister circuits that certification is the best way to proceed on these issues, especially in California. As an incubator of both musical talent and technological innovation, California has a significant interest in the appropriate resolution of the certified questions.”
The Supreme Court should decide by mid-May — give or take — whether it will answer the Ninth Circuit’s question. Usually, the Supreme Court, as a matter of comity, will grant those requests in order to keep the two courts happy together.
[March 17 update: The Supreme Court docketed the Ninth Circuit’s request yesterday.]