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On Wednesday, the 2nd Circuit Court of Appeals avoided handing down a definitive ruling on the closely watched issue of whether owners of pre-1972 sound recordings have performance rights and can stop SiriusXM from broadcasting them without agreed-upon compensation. The federal appeals court wants the New York Court of Appeals to address the issue first.
SiriusXM is fighting putative class-action lawsuits, led by Flo & Eddie of The Turtles, which contend that since federal copyright law protects sound recordings after 1972, it's up to state laws to protect works authored before then. The implications of the argument would theoretically mean that bars, restaurants, sports stadiums and other enterprises lose the right to perform the early works of Bob Dylan, The Rolling Stones and others.
In November 2014, New York federal judge Colleen McMahon followed a California judge in giving Flo & Eddie a significant victory and one that was unsettling for satellite and terrestrial radio operators. She sympathized with the defendant by writing that the "accepted fact of life in the broadcast industry for the last century" was that nobody was paying royalties for public performance. The judge added that common-law copyrights do in fact confer such benefits.
The case then went up to the 2nd Circuit, but technically, what's required is an interpretation of New York law. As such, the 2nd Circuit today certifies the following question for the state appeals court: 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 decision today takes no firm position, though it does express at least some skepticism.
Controversy Over Pre-1972 Sound Recordings Certified to New York Appeals Court
This could be a fun one to watch.
SiriusXM is fighting putative class-action lawsuits, led by Flo & Eddie of The Turtles, which contend that since federal copyright law protects sound recordings after 1972, it's up to state laws to protect works authored before then. The implications of the argument would theoretically mean that bars, restaurants, sports stadiums and other enterprises lose the right to perform the early works of Bob Dylan, The Rolling Stones and others.
In November 2014, New York federal judge Colleen McMahon followed a California judge in giving Flo & Eddie a significant victory and one that was unsettling for satellite and terrestrial radio operators. She sympathized with the defendant by writing that the "accepted fact of life in the broadcast industry for the last century" was that nobody was paying royalties for public performance. The judge added that common-law copyrights do in fact confer such benefits.
The case then went up to the 2nd Circuit, but technically, what's required is an interpretation of New York law. As such, the 2nd Circuit today certifies the following question for the state appeals court: 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 decision today takes no firm position, though it does express at least some skepticism.
Controversy Over Pre-1972 Sound Recordings Certified to New York Appeals Court
This could be a fun one to watch.
