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Broadcasters Ask Court to Overturn “Flo & Eddie” Ruling

Seek protection from "court-imposed" performance fees pre-1972

Broadcasters are seeking protection from paying “court-imposed” performance fees for pre-1972 recordings.

Both the National Association of Broadcasters and the New York State Broadcasters Association have filed “friend of the court” briefs with the U.S. Second Circuit Court of Appeals in New York. It is the latest turn in the case “Flo and Eddie Inc. v. Sirius XM Radio Inc.” A court earlier ruled that the satellite company was liable under New York common law for a performance fee for pre-1972 recordings it played; Sirius has appealed.

David Donovan, president of the NYSBA, said in a statement that New York case law has never recognized a right to a performance fee for broadcasting pre-1972 sound recordings. “The District Court simply erred and created a new right that does not exist in prior cases or statutes. Moreover, local radio is different from a subscription satellite service and the decision should not apply to local broadcasters.”

NAB wrote in its introduction to its filing: “The district court impermissibly recognized a retroactive common-lawcopyright under New York law in the public performance of pre-1972 sound recordings. The district court contravened decisions of this Court and the New York Court of Appeals recognizing that common-law copyright protects only against the unauthorized reproduction of sound recordings.”

NAB added that although the district court “stopped short” of a ruling that would encompass over-the-air broadcasting, the association asked the appeals court to “reject the ruling … and eliminate any doubt.”

“This court should not retroactively create amorphous property rights in radio broadcast of sound recordings …,” NAB continued. “Affirming the rule … would invite chaos and uncertainty and threaten reliance interests. … Finally, no broadcaster can be liable for unfair competition; radio airplay does not constitute bad-faith misappropriation to compete against uses of the plaintiff’s own property.”

The NAB filing makes clear that the association is continuing to follow closely any legal cases and precedents involving copyright, performance royalties and radio’s legal relationship to the music it plays. You can read the two filings below.

NAB Filing

NYSBA Filing


Fearing and Figuring “Flo & Eddie”