FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLO & EDDIE, INC., a

California corporation,

individually and on behalf of

all others similarly situated,

Plaintiff-Appellee,

v.

PANDORA MEDIA, INc., a

Delaware corporation,

Defendant-Appellant.

No. 15-55287

D.C. No. 

2:14-cv-07648-PSG-RZ

ORDER REQUESTING

CERTIFICATION TO

THE CALIFORNIA

SUPREME COURT

Filed March 15, 2017

Before: Stephen Reinhardt and Richard A. Paez, Circuit

Judges, and Paul L. Friedman,* District Judge.

Order

* The Honorable Paul L. Friedman, United States District Judge for

the District of Columbia, sitting by designation.
2 FLO & EDDIE, INC. V. PANDORA MEDIA, INC.

SUMMARY**

Certification to California Supreme Court

The panel certified the following questions of state law to

the California Supreme Court:

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?

ORDER

We certify the questions set forth in Part II of this order

to the California Supreme Court. All further proceedings in

this case are stayed pending final action by the California

Supreme Court, and this case is withdrawn from submission

until further order of this court. 

I. Administrative Information

We provide the following information in accordance with

Rule 8.548(b)(1) of the California Rules of Court.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FLO & EDDIE, INC. V. PANDORA MEDIA, INC. 3

The caption of this case is:

No. 15-55287

Flo & Eddie, Inc.,

Plaintiff and Appellee,

v.

Pandora Media, Inc., 

Defendant and Appellant.

The names and addresses of counsel are:

For Plaintiff-Appellee Flo & Eddie: Henry Gradstein,

Maryann R. Marzano, Harvey Geller, Daniel B. Lifschitz,

Gradstein & Marzano, P.C., 6310 San Vicente Boulevard,

Suite 510, Los Angeles, California, 90048.

For Defendant-Appellant Pandora Media: James K.

Lynch, Andrew M. Gass, Latham & Watkins LLP, 505

Montgomery Street, Suite 2000, San Francisco, California,

94111; Gregory G. Garre, Jonathan Y. Ellis, Latham &

Watkins LLP, 555 Eleventh Street, NW, Suite 1000,

Washington, D.C., 20004.

II. Certified Questions

Pursuant to Rule 8.548(b)(2) of the California Rules of

Court, we respectfully request the Supreme Court of

California to decide the certified questions presented below. 

There is no controlling precedent regarding the certified
4 FLO & EDDIE, INC. V. PANDORA MEDIA, INC.

questions, the answers to which will determine the outcome

of this appeal, dispose of Flo & Eddie’s underlying claims,

and resolve an important area of California state law. The

questions certified are as follows:

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?

III. Statement of Facts

Appellee Flo & Eddie is a corporation created by two

founding members of The Turtles, a 1960s folk rock band

best known for the hit song “Happy Together.” Flo & Eddie

allegedly acquired the rights to a number of The Turtles’ pre1972 sound recordings, which it has licensed to music, film,

and internet companies for various uses.

Appellant Pandora is an online radio service that allows

users to stream music on internet-connected devices,

including, until recently, The Turtles’ music. Pandora has not

paid Flo & Eddie for the public performance1of its sound

1 California courts have not defined “public performance.” Under

current federal law, public performance means “to perform or display [a

recording] at a place open to the public or at any place where a substantial

number of persons outside of a normal circle of a family and its social

acquaintances is gathered,” or “to transmit or otherwise communicate a
FLO & EDDIE, INC. V. PANDORA MEDIA, INC. 5

recordings, nor does it generally do so for performers of pre1972 sound recordings.

On October 1, 2014, Flo & Eddie filed an action2for

damages against Pandora for publicly performing The

Turtles’ pre-1972 sound recordings on its services without

paying royalties. Flo & Eddie alleged that these sound

recordings were protected under section 980(a)(2) of the

California Civil Code, as well as the state’s common law.

Originally enacted in 1872, and amended in 1947 and

1982, section 980 has undergone, at times, substantial

revision that may bear on the merits of Flo & Eddie’s claims. 

performance or display of the work to . . . the public, by means of any

device or process, whether the members of the public capable of receiving

the performance or display receive it in the same place or in separate

places and at the same time or at different times.” 17 U.S.C. § 101.

2 Prior to filing this case, Flo & Eddie filed similar actions against

online radio service Sirius XM in federal court in California, see Flo &

Eddie Inc. v. Sirius XM Radio Inc., No. CV 13-5693 PSG (RZx), 2014

WL 4725382 (C.D. Cal. Sept. 22, 2014); in New York, see Flo & Eddie,

Inc. v. Sirius XM Radio, Inc., 821 F.3d 265 (2d Cir. 2016); and in Florida,

see Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 827 F.3d 1016 (11th Cir.

2016). Sirius XM appealed adverse rulings in both the New York and

Florida cases, after which the Second and Eleventh Circuits certified

questions of state law to the New York Court of Appeals and Florida

Supreme Court, respectively. The New York Court of Appeals recently

answered the certified question, holding that New York’s common law of

copyright does not recognize an exclusive right of public performance for

copyright holders. See Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No.

172, 2016 WL 7349183 (N.Y. Dec. 20, 2016). As a result, the Second

Circuit reversed the district court’s order denying summary judgment to

Sirius XM and directed the district court to grant summary judgment and

dismiss the case with prejudice. Flo & Eddie, Inc. v. Sirius XM Radio,

Inc., No. 15-1164-CV, 2017 WL 629261, at *2 (2d Cir. Feb. 16, 2017).
6 FLO & EDDIE, INC. V. PANDORA MEDIA, INC.

We therefore briefly summarize the evolution of state and

related federal law, as relevant to the parties’ arguments.

A.

At the time The Turtles were recording and releasing

music in the 1960s, section 980(a) codified what was known

as “common law copyright.” It granted the “author or

proprietor of any composition in letters or art . . . an exclusive

ownership in the representation or expression thereof as

against all persons except” cover artists. Cal. Civ. Code

§ 980(a) (1949). At the same time, section 983(a) of the

California Civil Code divested any common law rights once

“the owner of a composition in letters or arts publishe[d] it.” 

Cal. Civ. Code § 983(a) (1949). Upon publication, “the same

[could] be used in any manner by any person, without

responsibility to the owner, insofar as the law of this State is

concerned.” Id.

The California legislature originallyadopted thislanguage

in 1947, seemingly “to remove ambiguities in the State law

and to bring the California statute into accord with federal

law and judicial precedent within and without California.” 

Memorandum from Beach Vasey, Legislative Sec’y, State of

Cal., to Governor Earl Warren (July 3, 1947) (emphasis

added). The “federal law” in force at time of adoption and

through the 1960s was the Copyright Act of 1909, which, like

the California copyright statutes, did not expressly mention

sound recordings. 

Rather, the 1909 Act differentiated between unpublished

and published works. Unpublished works were left to the

protection of the common law, unless registered for federal

protection. See Twin Books Corp. v. Walt Disney Co., 83
FLO & EDDIE, INC. V. PANDORA MEDIA, INC. 7

F.3d 1162, 1165 (9th Cir. 1996) (“Under the 1909 Act, an

unpublished work was protected by state common law

copyright from the moment of its creation until it was either

published or until it received protection under the federal

copyright scheme.”). Upon publication with proper copyright

notice, federal protection automaticallyattached and common

law protection terminated. Works that were published

without proper copyright notice irrevocably entered into the

public domain. See Batjac Prods. Inc. v. GoodTimes Home

Video Corp., 160 F.3d 1223, 1226 (9th Cir. 1998) (explaining

that, under the 1909 Act, “[s]tate ‘common law’ protection

attached upon creation of the work and ended with

publication of the work. Once published, the only protection

available was federal statutory copyright. Publication of a

work with proper notice secured the statutory copyright.”). 

The 1947 amendments to California’s copyright statutes

therefore reflected this schema by divesting common law

copyright protection at the point of publication. Cal. Civ.

Code § 983(a) (1949).

In 1978, however, this schema changed. Congress

overhauled federal copyright law. Rather than limiting

federal copyright protection only to works that were

published with proper notice, the Federal Copyright Act of

19763expanded federal protection to any works fixed in a

tangible medium of expression—thereby preempting

common law protection for fixed, but still unpublished works. 

See Federal Copyright Act of 1976, Pub. L. No. 94-553,

§ 102(a), 90 Stat. 2541, 2592 (1976); Batjac Prods., 160 F.3d

at 1226 (“Under the 1976 Act, unpublished works lost their

common law protection but gained statutory protection.”).

3 The 1976 Act became effective on January 1, 1978. 17 U.S.C.

§ 301(a).
8 FLO & EDDIE, INC. V. PANDORA MEDIA, INC.

The 1976 Act expressly exempted pre-1972 sound

recordings from this new federal protection, however. 17

U.S.C. § 301(c). Instead, the 1976 Act left the common law

in place to protect pre-1972 sound recordings. Id. (“With

respect to sound recordings fixed before February 15, 1972,

any rights or remedies under the common law or statutes of

any State shall not be annulled or limited by this title until

February 15, 2067.”).

In response, the California legislature repealed the

divestiture-by-publication rule of section 983 and again

amended section 980(a), dividing it into two subsections. 

Since then, section 980(a)(2) has granted the “author of . . . a

sound recording initially fixed prior to February 15, 1972 . . .

an exclusive ownership therein until February 15, 2047, as

against all persons except” cover artists.4 Cal. Civ. Code

§ 980(a)(2). Whether section 980(a)(2) or California

4 Specifically, section 980(a)(2) grants “exclusive ownership” as

against all persons except

one who independently makes or duplicates another

sound recording that does not directly or indirectly

recapture the actual sounds fixed in such prior sound

recording, but consists entirely of an independent

fixation of other sounds, even though such sounds

imitate or simulate the sounds contained in the prior

sound recording.

Cal. Civ. Code § 980(a)(2). In Sirius, the district court interpreted this

language as an exception for artists creating “covers,” defined as

“recording the song with new instruments.” Flo & Eddie, 2014 WL

4725382, at *5 (“In other words, ownership of a sound recording does not

include the exclusive right to make ‘covers’ (i.e., recording the song with

new instruments) . . . so long as they produce the sounds independently

rather than recapture the actual sounds in the copyrighted recording.”).
FLO & EDDIE, INC. V. PANDORA MEDIA, INC. 9

common law extend an exclusive right of public performance

to owners of pre-1972 sound recordings is the subject of this

lawsuit.

B.

After Flo & Eddie filed the present lawsuit, Pandora filed

a motion to strike under California’s statute against “strategic

litigation against public participation,” or SLAPP.5 Pandora

argued that section 980(a)(2) does not even apply to The

Turtles’ recordings since, under section 983(a), those

recordings entered the public domain at the point of

publication back in the 1960s. Relying on the legislative

5

“The analysis of an anti-SLAPP motion . . . involves two steps. 

First, the court decides whether the defendant has made a threshold

showing that the challenged cause of action is one ‘arising from’ protected

activity. If the court finds such a showing has been made, it then must

consider whether the plaintiff has demonstrated a probability of prevailing

on the claim.” Oasis W. Realty, LLC v. Goldman, 250 P.3d 1115, 1120

(2011) (internal quotation marks and citation omitted); see also Hilton v.

Hallmark Cards, 599 F.3d 894, 901–02 (9th Cir. 2010). “To satisfy the

second prong, . . . . the plaintiff ‘must demonstrate that the complaint is

both legally sufficient and supported by a sufficient prima facie showing

of facts to sustain a favorable judgment if the evidence submitted by the

plaintiff is credited.’” Oasis, 250 P.3d at 1120. Here, the parties relied

solely on the factual allegations in the complaint. Thus, the issues are

presented as pure questions oflaw, and are therefore particularly suited for

certification. 

Moreover, an answer to the certified questions in this case would

resolve the merits of Flo & Eddie’s claims alleging violations of an

exclusive right to public performance under both section 980(a)(2) and

California common law. Thus, although the issue before our court is in

the context of an appeal fromthe denial of an anti-SLAPP motion, a ruling

on the certified questions would not only dispose of the appeal from the

collateral order, but would also resolve the underlying claims.
10 FLO & EDDIE, INC. V. PANDORA MEDIA, INC.

history of section 980, Pandora further argued that the

California legislature in 1982 did not intend to create

protection for sound recordings that had previously entered

the public domain when it adopted section 980(a)(2). Even

if it did, Pandora argued, the legislature did not intend that

protection to include a public performance right.

Flo & Eddie opposed the motion, arguing that the plain

language of section 980 gave it “exclusive ownership” over

The Turtles’ pre-1972 sound recordings, including a public

performance right. Flo & Eddie further argued that the repeal

of section 983 made that provision irrelevant. Even if it had

never been repealed, Flo & Eddie argued, section 983 never

applied to its sound recordings because (1) The Turtles’

records were not “published” for the purposes of California

law, and (2) section 983 applied only to compositions.

The district court rejected Pandora’s arguments and

denied the motion to strike, reasoning that Pandora’s reading

of section 980(a)(2) would lead to absurd results. Flo &

Eddie, Inc. v. Pandora Media, Inc., No. CV 14-7648 PSG

(RZx), 2015 U.S. Dist. LEXIS 70551, at *22–23. The court

ruled that California law had historically protected sound

recordings even after publication via the common law. Id. at

*24–28. Reading that protection into the text of section

980(a)(2), the court concluded that the statute protected

published pre-1972 recordings and granted Flo & Eddie a

property right in the public performance of its sound

recordings. Id. at *27–29. On the basis of that property right,

the district court further held that Flo & Eddie’s claims for

misappropriation, conversion, and unfair competition were

legally sufficient for the purposes of the anti-SLAPP statute. 

Id. at *29. Pandora timely appealed. See DC Comics v. Pac.

Pictures Corp., 706 F.3d 1009, 1016 (9th Cir. 2013) (holding
FLO & EDDIE, INC. V. PANDORA MEDIA, INC. 11

that an order denying a special motion to strike under

California’s anti-SLAPP law is immediately appealable in

federal court pursuant to the collateral order doctrine).

IV. The Need for Certification

Certification is warranted if there is no controlling

precedent and the California Supreme Court’s decision could

determine the outcome of a matter pending in our court. See

Cal. R. Ct. 8.548(a). This appeal not onlymeets both criteria,

but also presents an issue of significant public importance. 

Indeed, the “significant and unresolved” nature of the

issue prompted the United States Court of Appeals for the

Second Circuit to certify a similar question to the New York

Court of Appeals in Flo & Eddie’s case against Sirius XM. 

Flo & Eddie, 821 F.3d at 267. The Court of Appeals

accepted the certified question, Flo & Eddie, Inc. v. Sirius

XM Radio, Inc., 52 N.E.3d 240 (2016), and resolved it in

view of the fact that its decision could have “extensive and

far-reaching” consequences given the “many competing

interests at stake,” Flo & Eddie, 2016 WL 7349183.6

Faced with “a complete judicial void” in Florida case law,

the United States Court of Appeals for the Eleventh Circuit

likewise certified similar questions to the Florida Supreme

Court in another Flo & Eddie case against Sirius XM. See

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 827 F.3d 1016,

6

In that case, the court held that copyright holders do not have a right

of public performance under New York common law. Flo & Eddie, 2016

WL 7349183. Accordingly, the Second Circuit directed the district court

to grant summary judgment to Sirius XM and dismiss the case with

prejudice. Flo & Eddie, 2017 WL 629261, at *2.
12 FLO & EDDIE, INC. V. PANDORA MEDIA, INC.

1020 (11th Cir. 2016). The Florida Supreme Court has

accepted the certified questions and set oral argument for

later this year. See Scheduling Order, Flo & Eddie, Inc. v.

Sirius XM Radio, Inc., No. SC16-1161 (Fla. Jan. 30, 2017).

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. 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. 

A.

No controlling precedent resolves the certified questions. 

Capitol Records, Inc. v. Erickson, 82 Cal. Rptr. 798 (Ct. App.

1969) and A & M Records, Inc. v. Heilman, 142 Cal. Rptr.

390 (Ct. App. 1977) predate the adoption of section

980(a)(2), and therefore cannot aid us in resolving the first

certified question. Erickson and Heilman also address only

common law liability for piracy, the unauthorized duplication

and distribution of sound recordings for profit. Public

performance was not at issue in either case, thereby rendering

them unhelpful in resolving the second certified question as

well. As such, there is no precedent, much less controlling

precedent, from either the California appellate courts or the

California Supreme Court to guide our court’s inquiry.

Flo & Eddie’s central argument is that California’s plain

meaning rule for interpreting statutes resolves the first

certified question. See, e.g., People v. Canty, 90 P.3d 1168,

1172-73 (Cal. 2004). Applying the rule, Flo & Eddie
FLO & EDDIE, INC. V. PANDORA MEDIA, INC. 13

contends that the “exclusive ownership” term in section

980(a)(2) allows copyright owners to exclude all

unauthorized uses, including public performance. But the

statute does not define “exclusive ownership” or

“ownership.” And while undefined terms are given their

ordinary meanings, as appropriate to the context, see

Martinez v. Vaziri, 200 Cal. Rptr. 3d 884, 891 (Ct. App.

2016) (refusing to construe an undefined phrase in isolation

“because as a matter of basic statutory interpretation, the

words must be construed in context”), it could well be said

that the “ordinary meaning” of “exclusive ownership” in the

context of copyright is at the very heart of the dispute in this

case.

That section 980(a)(2) includes an exception for cover

artists does not make the meaning of “exclusive ownership”

plain. The exception only establishes that the “ownership”

rights granted by the statute do not include rights to control

cover artists; it does not establish what “ownership” rights are

included in the first instance. The canons of statutory

interpretation are therefore insufficient to aid in the resolution

of this case, and do not eliminate the need for clear guidance

from California’s highest court.7

7 The only California case that has touched on the issue is Capitol

Records, LLC v. Sirius XM Radio, Inc., No. BC520981, 2014 WL

7150014 (Cal. Super. Ct. Dec. 5, 2014), a Los Angeles County Superior

Court case. Seemingly confirming the lack of sufficient guidance from

California appellate courts, the Capitol Records court issued a tentative

ruling refusing to recognize a public performance right in a jury

instruction only to reverse the ruling after the Central District ofCalifornia

reached the opposite conclusion in Sirius. The issue was never resolved,

however, as the case later settled.
14 FLO & EDDIE, INC. V. PANDORA MEDIA, INC.

Pandora maintains that Flo & Eddie’s sound recordings

lost state copyright protection upon publication in the 1960s,

and that the 1982 amendment adopting section 980(a)(2) did

not resurrect copyright protection. But this argument depends

on an interpretation of the 1947 versions of sections 980(a)

and 983(a), which have likewise never been considered by the

California Supreme Court. Accordingly, Flo & Eddie cites

only off-point lower court cases and out-of-state authority8

for its counter-argument that the divestiture-by-publication

rule of the 1947 version of section 983(a) did not apply to

sound recordings.9

8 Flo & Eddie cites one case within our circuit, Capital Records, LLC

v. Bluebeat, Inc., 765 F. Supp. 2d 1198 (C.D. Cal. 2010). Otherwise, Flo

& Eddie cites cases from New York, Metro. Opera Ass’n v. WagnerNichols Recorder Corp., 101 N.Y.S.2d 483 (Sup. Ct. 1950); Capitol

Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540 (2005), from Florida,

CBS, Inc. v. Garrod, 622 F. Supp. 532 (M.D. Fla. 1985), from Michigan,

A & M Records, Inc. v. M.V.C. Distrib. Corp., 574 F.2d 312 (6th Cir.

1978), from Wisconsin, Mercury Record Prods. v. Econ. Consultants,

Inc., 218 N.W.2d 705 (Wis. 1974), and from Pennsylvania, Waring v.

WDAS Broadcasting Station, Inc., 194 A. 631 (Pa. 1937). 

9 At oral argument, the parties focused on the meaning and impact of

the out-of-state case RCA Mfg. Co. v. Whiteman, 114 F.2d 86 (2d Cir.

1940), and the duo of cases that were purported to “overrule” it: Capitol

Records, Inc. v. Mercury Records, Corp., 221 F.2d 657 (2d Cir. 1955) and

Metro. Opera, 101 N.Y.S.2d 483. In a recent decision, the New York

Court of Appeals decisively resolved the dispute. The court held that

Mercury Records did not overrule the underlying premise of Whiteman,

and held that no right of public performance existed under New York

common law copyright. See Flo & Eddie, 2016 WL 7349183. 
FLO & EDDIE, INC. V. PANDORA MEDIA, INC. 15

In Lone Ranger Television, Inc. v. Program Radio Corp.,

740 F.2d 718 (9th Cir. 1984),10as Pandora points out, we

addressed a similar situation. There, we concluded that

broadcast tapes of the Lone Rangerradio show leased to radio

stations and sold to the public in the 1950s and 1960s had lost

common law or state copyright protection upon general

publication under section 983, despite its later repeal. 

Although binding precedent for our court, Lone Ranger was

a case about piracy. It therefore does not help us resolve

whether the California legislature intended to grant a right of

public performance to owners of pre-1972 sound recordings

when it explicitly extended copyright protection to sound

recordings with the adoption of section 980(a)(2) in 1982. 

Nor does it resolve whether California’s common law of

copyright guarantees a right of public performance, in

addition to protecting against piracy.

B.

Resolving these questions will dispose of this appeal and

determine the merits of Flo & Eddie’s underlying claims. 

The district court concluded that section 980(a)(2) granted

owners of pre-1972 sound recordings a property right in the

public performance of their recordings. On the basis of that

property right, the district court further concluded that Flo &

Eddie’s claims of misappropriation, conversion, and unfair

competition were legally sufficient. If either section

980(a)(2) or California common law does provide an

exclusive right of public performance, the district court’s

ruling must be affirmed, and Flo & Eddie’s claims granted. 

10 Our opinion acknowledged that this case was decided after section

980(a)(2) had been enacted and section 983 had been repealed. Lone

Ranger, 740 F.2d at 725. 
16 FLO & EDDIE, INC. V. PANDORA MEDIA, INC.

If neither section 980(a)(2) nor California common law

provides such a right, the district court’s ruling must be

reversed, and the underlying claims must be dismissed. 

We therefore conclude that this case presents prime

questions for the California Supreme Court to address. See

Cal. R. Ct. 8.548(a). The answers given by the California

Supreme Court will dispose of this appeal currently pending

before the Ninth Circuit. We agree to accept the court’s

answers.

V. Accompanying Materials

The clerk of this court is hereby directed to file in the

California Supreme Court, under official seal of the United

States Court of Appeals for the Ninth Circuit, copies of all

relevant briefs and excerpts of record, and an original and ten

copies of the request with a certification of service on the

parties, pursuant to California Rules of Court 8.548(c), (d).

The panel will only resume control and jurisdiction of this

case upon receiving a decision from the California Supreme

Court or upon that court’s decision to decline to answer the

certified questions. The parties shall file a joint report

informing this court of whether the California Supreme Court

has accepted the certified questions, after that determination

is made. If the California Supreme Court accepts the certified

questions, the parties shall file a joint status report to our

court every six months after the date of acceptance. 

IT IS SO ORDERED.