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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Supreme Court of Florida to Weigh in on Common Law Sound Recording Rights

I’ve written periodic posts about Flo & Eddie since December 2014.  As a brief refresher, the corporation Flo & Eddie owns the rights to the pre-February 15, 1972 sound recordings of The Turtles.  Band members Mark Volman and Howard Kaylan own Flo & Eddie.  Sirius XM Radio, Inc. operates nationwide as a satellite and Internet radio provider.  Flo & Eddie sued Sirius in federal courts in California, New York and Florida.  Flo & Eddie claimed that Sirius violated Flo & Eddie’s ownership rights in its pre-1972 sound recordings by broadcasting recordings and making buffer and backup copies of Turtles performances without a license or authorization.  Appeals in the Flo & Eddie v. Sirius cases are pending before the Second, Ninth, and Eleventh Circuits.

Flo & Eddie’s cases against Sirius arise from the lack of federal copyright protection for pre-1972 sound recordings.  Sound recordings did not receive protection under the Copyright Act until February 15, 1972, although musical compositions and lyrics have always been protected.  If pre-1972 sound recording rights are protected at all, it is under state copyright law.  Although the district courts in California and New York ruled in Flo & Eddie’s favor on its state law claims, the Southern District of Florida granted summary judgement in Sirius’ favor.  On appeal in the Florida case, the Eleventh Circuit Court of Appeals determined that the state law questions had not been decided by Florida state courts.  The Eleventh Circuit certified four questions to the Supreme Court of Florida for that court’s guidance on Florida state law.

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The Beat Goes on in the Pre-1972 Sound Recording Battles

Plaintiffs Arthur Sheridan and Barbara Sheridan, owners of sound recordings made before 1972, brought New Jersey law copyright infringement claims against iHeartMedia for broadcasting those recordings without authorization and without compensating the sound recording owners.  The Copyright Act of 1976 does not apply to pre-1972 sound recordings.  Copyright owners for pre-1972 have brought state law copyright infringement claims in several states, arguing that state statutory and common law governs the rights attached to pre-1972 sound recordings.  iHeartMedia moved to stay the New Jersey proceeding against it, pending the outcomes of similar cases pending in the Second, Ninth and Eleventh Circuits.  The district court granted iHeartMedia’s motion to stay.  I posted on this topic in Flo and Eddie Goes for the Two Coast Punch Against Sirius XM.

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Unhappy Turtles Take a Bite Out of Sirius XM for Unauthorized Public Performance

This case involves the extent of the ownership rights to pre-1972 sound recordings and the relationship between state and federal copyright law.  The Turtles musical group recorded the 1960’s hit “Happy Together,” as well as a number of other hit songs.  Howard Kaylan and Mark Volman, two of The Turtles founding members, created and own Flo & Eddie, Inc.  Flo & Eddie in turn owns all rights to The Turtles’ master sound recordings.  Although Flo & Eddie has licensed The Turtles songs for use in movies, TV shows and commercials, Flo & Eddie has never licensed its public performance rights in the songs to a digital radio station or any other radio station. 

Sirius XM runs nationwide satellite radio and Internet radio subscription services.  Sirius XM publicly performed 15 separate sound recordings exclusively owned by Flo & Eddie.  Flo & Eddie did not license these songs to Sirius XM and Sirius XM publicly performs the songs without paying royalties to Flo & Eddie. 

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