A Seismic Ruling Revisited: No Common-Law Public Performance Rights in Pre-1972 Sound Recordings in New York–Flo & Eddie v. Sirius
11 01 2017By Guest Blogger Tyler Ochoa
On December 20, 2016, the New York Court of Appeals (the highest court in the State of New York) held 4-2 (with one judge recused) that “New York common-law copyright does not recognize a right of public performance for creators of sound recordings.” Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 16-172, at pp. 1-2 (emphasis added). The decision dashed Flo & Eddie’s hopes for a decisive court victory that would likely have required various broadcasters, including Sirius XM, to shell out lots of money to the owners of state-law copyrights in sound recordings fixed before February 15, 1972. The wave of litigation concerning state-law public performance rights in pre-1972 sound recordings is not at an end (Flo & Eddie still have cases pending in California and Florida, and other sound-recording copyright owners have filed suits in other states), but the failure of the litigation in New York likely will influence other states to follow New York’s lead.
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