Two years ago we wrote about Floe & Eddie, Inc.’s, attempt to obtain royalties from SiriusXM for performances of the Turtle’s pre-February 1972 sound recordings. Floe & Eddie filed claims in California, New York, and Florida seeking to obtain royalties for performances of their recordings under state common law. You may recall that for pre-February 1972 sound recordings, there is no federal performance right. Simply put, this means if you are the copyright owner of a pre-1972 sound recording (e.g., a vinyl record), you will not receive royalties under federal law for playing the record over the air.
When we wrote the original article, the U.S. District Court for the Southern District of New York denied SiriusXM’s motion for summary judgment on grounds that the Turtles had New York common law performance rights in their pre-1972 sound recordings. It turns out that our original conclusion that states may seek to protect owners of pre-1972 sound recordings may have been premature, at least as applied to New York state. Here’s what just happened.
The United States District Court for the Southern District of New York denied defendant’s motion for reconsideration. On appeal, the Second Circuit Court of Appeals determined that the case presented “a significant and unresolved issue of New York copyright law,” and certified the question of whether there was a pre-1972 performance right to the New York Court of Appeals (New York’s “supreme court”). On December 20, 2016, the court issued its opinion, holding that under “New York common-law copyright does not recognize a right of public performance for creators of sound recordings….” It looks like SiriusXM wins!
How the court arrived at its decision is a fascinating textbook on how courts render opinions on complex legal issues where legal precedents are thin. A detailed summary of the court’s opinion is beyond the scope of this short article but here’s what the court said in a nutshell.
For those interested in the details of the court’s opinion here is a link to the full opinion.
— Adam G. Garson, Esq.