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Sirius XM Lawyers' Blunder in Pre-1972 Recordings Case
Soon after swooping in to represent Sirius XM Radio in potentially industry-shaking copyright litigation, O'Melveny & Myers suffered a nasty setback when a judge ruled that newly cited precedent trumpeted by the firm had been overruled 60 years ago.
In a scathing order issued in December, U.S. District Judge Colleen McMahon in the U.S. District Court for the Southern District of New York ruled she hadn't erred when she failed to apply RCA Manufacturing Co. v. Whiteman, 114 F.2d 86 (2d Cir. 1940), in concluding in November that Sirius must pay royalties to broadcast pre-Feb. 15, 1972 sound recordings. “The only clear error in this case is O'Melveny's,” Judge McMahon wrote. She also blasted the law firm for “deliberately missing the point” and “doing nothing but raise red herrings” since making its initial appearance in the case in November. (The order is available online at http://bit.ly/13KkiUJ.)
This ruling stems from the New York federal lawsuit in which the two founding members of the 1960s rock band The Turtles allege that Sirius infringed on the group's rights under state common law copyright by playing its songs without permission. Flo & Eddie Inc. v. Sirius XM Radio Inc., 13-5784. Federal copyright law doesn't govern sound recordings made prior to Feb. 15, 1972, and Sirius has argued in its defense that New York law also doesn't cover public performance rights for pre-1972 sound recordings.
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