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New York Broadcasters Applaud Performance Fee Decision

Court says there was no pre-1972 public performance right

Broadcasters won a court victory in the ongoing battle with artists over compensation for older music played on radio and TV, a victory being celebrated by the New York State Broadcasters Association.

The U.S. Court of Appeals for the Second Circuit, which is considering the issue of pre-1972 music rights per a suit filed by Flo & Eddie, representing original members of the The Turtles (“Happy Together”) against SiriusXM, asked the New York court whether the state had “a right of public performance for creators of sound recordings under New York law and, if so, what was the nature and scope of that right.”

In a 4–2 decision this week, the New York State Court of Appeals ruled that the state’s common-law copyright does not recognize a right of public performance for creators of sound recordings.

SiriusXM plays the Turtles pre-1972 songs without a license and without paying for them. Artists and record companies claim that violates common-law copyright and is infringement and unfair competition.

The U.S. District Court for the Southern District of New York had denied SiriusXM’s motion to dismiss the complaint, saying New York did have a common-law right of public performance for pre-1972 sound recordings, so SiriusXM airplay without permission or payment was out of bounds.

Sirius appealed that decision to the Second Circuit, which asked the New York court for the answer it has now received. That answer buttresses SiriusXM’s appeal and broadcasters’ arguments that pre-1972 recordings are fair game under fair use, at least in New York.

David Donovan, president of the New York State Broadcasters Association, called it a victory for TV and radio broadcasters. “While the case directly involved SiriusXM, it was clear that the decision could affect broadcasters. This is an important decision that will have national implications,” he said.

Broadcasting & Cable