The US Court of Appeals for the Second Circuit agreed with the New York Court of Appeals that there is no New York State common law “right of public performance” for pre-1972 recordings that is equivalent to federal copyright protection. Flo & Eddie v. Sirius XM Radio, Inc. et al., Case No. 15-1164 (2d Cir., Feb. 16, 2017) (per curium). 

Former recording artists Flo & Eddie (F&E) maintain rights to songs by the 1960s group The Turtles (e.g.,“Happy Together,” “She’d Rather Be With Me”). F&E brought a class action suit in the Southern District of New York alleging that Sirius XM Radio infringed its common law copyright protection for sound recordings through the digital transmission of pre-1972 songs. F&E sought millions of dollars in past and future royalties for songs recorded prior to February 15, 1972, the date legislation was amended to confer federal copyright protection. 

Throughout the litigation, F&E argued that despite the lack of federal copyright protection for pre-1972 sound recordings, New York common law provides an equivalent “right of public performance,” and the common law protections should require payment of royalties on digital transmission (i.e., a “public performance”) for songs recorded before the federal copyright protections became available. 

The district court found no clear answer under New York law as to whether the exclusive rights of sound recording owners include a right of public performance. The question was therefore certified for interlocutory appeal to the Second Circuit, which in turn certified the question to the New York Court of Appeals, asking the state’s highest court to answer whether the state had “a right of public performance for creators of sound recordings under New York law and, if so, what was the nature and scope of that right.”

Following review of the history of common law copyright protection in sound recordings, the New York Court of Appeals concluded that common law does not protect public performance of songs recorded prior to 1972. In other words, the right F&E sought to enforce did not exist under the limited common law protections available in New York, as New York law only conferred protection against unauthorized reproduction of a work until it was published (thereby triggering the federal copyright statute). In view of the respective roles of the judiciary and the legislature, the New York Court of Appeals declined to create a common law right of public performance for pre-1972 sound recordings. 

Practice Note: The Second Circuit decision settles the issue presented in Sirius’s favor. The practical effect of the Second Circuit’s judgment is that radio broadcast companies are not required to pay new royalties in order to play songs recorded before 1972. Courts in other jurisdictions (such as California and Florida) are currently considering whether the laws of those states give rise to any right of public performance for pre-1972 sound recordings.