No New York Common Law Public Performance Right for Sound Recording Creators

We close 2016 with the latest on the Flo & Eddie v. Sirius XM saga. My previous posts on this topic include Unhappy Turtles Take a Bite Out of Sirius XM for Unauthorized Public Performance, Flo and Eddie Goes for the Two Coast Punch Against Sirius XM and Supreme Court of Florida to Weigh in on Common Law Sound Recording Rights.

Sirius XM Radio, a satellite digital radio service, broadcasts pre-1972 sound recordings without licenses and without paying the copyright owners of those sound recordings. Flo & Eddie, Inc., which owns the rights to The Turtles pre-1972 sound recordings, sued Sirius XM in multiple federal courts. Flo & Eddie claimed that Sirius XM’s actions infringe Flo & Eddie’s common law copyrights. Although U.S. copyright law has protected rights to musical compositions since 1831, federal copyright law did not protect rights to sound recordings until 1972, albeit offering limited protection. In 1995, federal copyright law began providing owners of post-1972 sound recordings a right to control public performance of sound recordings for digital audio transmission performances only. The right does not apply to AM/FM radio stations. Flo & Eddie argue that state common law copyrights protect their pre-1972 sound recordings from Sirius XM’s unauthorized satellite digital public performances.

After the federal district court for the Southern District of New York ruled in favor of Flo & Eddie on ownership of the public performance right, Sirius XM appealed. The Second Circuit Court of Appeals asked the New York State Court of Appeals, New York State’s highest court, to authoritatively answer this question:

Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?

The New York Court of Appeals ruled that New York common law copyright does not recognize a right of public performance for creators of sound recordings. I think the dissent presents the more persuasive argument. The majority passed the buck and declined to exercise its common law authority.

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Flo and Eddie Goes for the Two Coast Punch Against Sirius XM

I posted on Flo & Eddie’s California lawsuit against Sirius XM last week.  This week’s post discusses Flo & Eddie’s New York lawsuit against Sirius XM. 

Flo & Eddie owns all rights to The Turtles’ master sound recordings.  Sirius XM makes multiple copies of the songs it plays through its database creation, digital broadcasting and streaming activities.  Sirius SX does not allow its users to download or store songs or select which songs the user wants to listen to.  Flo & Eddie claimed that Sirius XM infringed its common law copyright under New York state law by copying (reproducing) copies of the master recordings and by publicly performing those recordings without permission.

Flo & Eddie argued that New York common law applies to pre-1972 sound recordings and prohibits the reproduction and public performance of those recordings.  Sirius XM brought a motion for summary judgment.  Sirius XM argued that common law copyright does not provide an exclusive public performance right, that Sirius XM’s use is a fair use and that Flo & Eddie’s action is barred by laches.  The district court denied Sirius XM’s motion for summary judgment and further ordered Sirius XM to show cause why summary judgment should not be entered in favor of Flo & Eddie on liability.

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