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Second Circuit Asks NY Ct. of Appeals To Answer Pre-1972 Recordings Issue
The New York Court of Appeals has been sent an important and unresolved issue on copyright infringement for music recorded prior to 1972. The U.S. Court of Appeals for the Second Circuit has asked New York's highest court to determine whether there is a right of public performance for creators of sound recordings under that state's law and “if so, what is the nature and scope of that right?”
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.)
District Judge McMahon asked Sirius to show why she should not rule in favor of Flo & Eddie and enter a finding of liability against the company. It was the second win for the plaintiffs against one loss in similar cases, as a judge in California ruled for Flo & Eddie in 2014 but a judge in Florida ruled against them the following year.
In New York, the Second Circuit accepted an interlocutory appeal of Judge McMahon. Circuit Judges Guido Calabresi, Denny Chin and Susan Carney heard oral argument in February 2016. In April, Circuit Judge Calabresi said the case presented a significant issue of New York law best resolved by the state Court of Appeals.
Judge Calabresi said Congress amended the Copyright Act, 17 U.S.C. '301(c), in 1971 to grant “limited copyright protection to sound recordings fixed on or after Feb. 15, 1972, while expressly preserving state-law property rights in sound recordings fixed before that date.” The circuit judge said that, because the recordings of The Turtles (and other plaintiffs) were fixed before that date, “they are protected, if at all, by state copyright law.”
New York provides no statutory protection to owners of pre-1972 sound recordings, but the state's common law “does provide certain rights to copyright holders in these recordings,” the circuit judge noted. “As a result, the issue before us is whether New York common law affords copyright holders the right to control the performance of sound recordings as part of their copyright ownership,” Calabresi continued. “The New York Court of Appeals has not ruled on whether such a right exists.”
Judge Calabresi said the federal appeals court was reluctant to decide whether the plaintiffs could bar Sirius from broadcasting the material without clear guidance from the Court of Appeals.
Harvey Geller, Henry Gradstein and Maryann Marzano, partners at Gradstein & Marzano in Los Angeles represent the plaintiffs. Daniel Petrocelli, Cassandra Seto and Jonathan Hacker, partners at O'Melveny & Myers, represent the defendants.
Mark Hamblett writes for the New York Law Journal, an ALM sibling of Entertainment Law & Finance.
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