Flo and Eddie, still on a roll in New York, face a decision; meanwhile, a new plaintiff surfaces in California
For those of you awaiting the next installment of “Flo and Eddie Get Sirius”, we have some news. Recall that last November, the former Turtles were oh-so-close to getting a judgment against Sirius XM in the New York version of their fight to collect for infringements of Flo and Eddie-owned copyrights covering a number of pre-1972 sound recordings. The only thing that stood between them and a favorable judgment was Judge Colleen McMahon’s invitation (actually, it was an order) to Sirius XM to show cause why judgment shouldn’t issue.
As we expected, Sirius XM came up with a number of arguments, none of which struck paydirt. It claimed that the plaintiff corporation, Flo and Eddie, Inc., didn’t really own the copyrighted works at issue – a claim Judge McMahon rejected. Sirius XM’s argument was based on the notion that, while Howard Kaylan and Mark Volman (who used the noms de disque Eddie and Phlorescent Leech a/k/a Flo, respectively) clearly held title to the recordings, it wasn’t clear that they had formally transferred title to their corporate persona, “Flo and Eddie, Inc.” Judge McMahon reviewed the available evidence and was convinced that the corporation held title.
Along the same lines, Sirius XM argued that Flo and Eddie had implicitly authorized the digital transmission of their works by appearing on (and hosting) various Sirius XM shows. Judge McMahon wasn’t convinced, mainly because anybody alleging such implied authority has a very high burden to meet (and Sirius XM didn’t meet it). Along the same lines Sirius XM claimed that Flo and Eddie had waived any infringement claims or that they should be estopped from raising them. McMahon concluded that this was akin to the “implicit authority” claim and rejected it.Continue Reading...