9th Circuit Punts Flo & Eddie v. Pandora Pre-1972 Performance Right Question to Top Calif. Court

The 9th U.S. Circuit Court of Appeals paused Wednesday its review of musicians Flo & Eddie's California lawsuit against Pandora over unpaid performance royalties for pre-1972 recordings, saying it wants the California Supreme Court to decide whether state law recognizes that performance right. Pandora appealed a February 2015 ruling in Flo & Eddie's lawsuit by the U.S. District Court in Los Angeles that said a 1982 California law recognizes a pre-1972 performance right (see 1509100067). Flo & Eddie, who own The Turtles' “Happy Together” and the rest of the band's music catalog, sought compensation from both Pandora and Sirius XM on the pre-1972 performance right issue. The 9th Circuit's punting of the pre-1972 performance right question to a state court follows similar reviews by the Florida Supreme Court and the New York Court of Appeals of their states' laws at the respective requests of the 11th and 2nd circuits in those courts' reviews of Flo & Eddie's lawsuits against Sirius (see 1612200066, 1702140067 and 1702160076). “We agree with our sister circuits that certification is the best way to proceed on these issues, especially in California,” the 9th Circuit said in its order. “As an incubator of both musical talent and technological innovation, California has a significant interest in the appropriate resolution of the certified questions. Resolution of these questions will likely affect the state and industries within the state in a variety of ways, and is therefore best left to the California Supreme Court.”