Second Circuit Asks NY Ct. of Appeals To Answer Pre-1972 Recordings Issue

The issue arose in a putative class action brought by lead plaintiffs Flo & Eddie Inc., a corporation controlled by two of the founding members of a 1960s band, The Turtles, that owns the recordings of the group's hits like “Happy Together.” With no federal copyright protection for pre-1972 sound recordings, the plaintiffs in Flo & Eddie Inc. v. Sirius XM Radio Inc., 15-1164, are looking for a remedy under New York common law from the 30-million subscriber Internet-radio broadcaster, Sirius-XM. Flo & Eddie's suit alleges Sirius commits infringement both by broadcasting The Turtles and other bands' recordings and making internal reproductions such as library, buffer and cache copies.

Sirius moved for summary judgment, arguing there is no public performance right in pre-1972 recordings under New York law and that the reproductions are fair use. But Judge Colleen McMahon of the U.S. District Court for the Southern District of New in 2014 denied the company's motion, holding that there was indeed a public-performance right and the reproductions were not fair use. She rejected a second argument by Sirius, finding that recognition of the right would not implicate the dormant U.S. Commerce Clause because the right is not a state “regulation” of commerce. (For more on the case background, see, “Focus on Flo & Eddie's New York Litigation Seeking Public Performance Rights in Pre-1972 Recordings,” in our April 2015 issue.)