Metropolitan News-Enterprise


Friday, June 3, 2022


Page 1


Ninth Circuit:

Suit Over Nonpayment of Royalties for Playing Old Records Doesn’t Involve Protected Speech


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed the denial of an anti-SLAPP motion filed by Pandora, a subscription-based music streaming service, in an action against it by two members of the Turtles, a rock band that was popular in the late 1960s, over playing their recordings without paying royalties.

A memorandum decision affirms the order by Chief Judge Philip S. Gutierrez of the Central District of California who declined to grant a special motion to strike the complaint filed by Flo & Eddie, Inc., formed by Mark Volman (“Phlorescent Leech”) and Howard Kaylan.

The first prong of California’s anti-SLAPP statute, Code of Civil Procedure §425.16—protected speech—is not satisfied, a three-judge panel said, declaring:

“Pandora has failed to demonstrate that its mere broadcasting of Flo & Eddie’s  music constitutes speech on an issue of public interest that has a functionally close  relationship to the public issue and that furthers debate on the public issue. At most, Pandora has shown that it broadcasts songs performed by The Turtles, which in itself  is insufficient.”

The present case is unlike one decided in 2000 by this district’s state Court of Appeal in Serova v. Sony Music Entertainment, the judges said. There, the plaintiffs claimed that the cover of an album contained an untrue representation. Presiding Justice Elwood Lui wrote: “[T]the representations that Serova challenges—that Michael Jackson was the lead singer on the three Disputed Tracks—did not simply promote sale of the album, but also stated a position on a disputed issue of public interest.”

The panel said in yesterday’s opinion that the present case “is distinguishable” from that and other cases “in which the publication of music was determined to be protected conduct.”

Circuit Judges Daniel Aaron Bress and Kenneth Kiyul Lee, joined by District Court Judge Sidney A. Fitzwater of the Northern District of Texas, sitting by designation, said that “[t]he instant case is more like those in which speech refers to, but does not further, debate on a public issue.” They cited as example of such a case In All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc., decided in 2010 by the First District Court of Appeal.

That court found that the matter of placing a label on a product saying that it’s organic does not advance or foster a debate.”

Yesterday’s decision came in Flo & Eddie, Inc. v. Pandora Media, LLC, 20-56134.


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