The Turtles Happy Together Cover - S 2013
SiriusXM appears to have brought one dispute over the public performance of pre-1972 sound recordings to conclusion. On Thursday, the 2nd Circuit Court of Appeals told a lower court to grant the satcaster’s motion for summary judgment and dismiss with prejudice a putative class action lawsuit brought by Flo & Eddie of The Turtles.
The development occurs after a New York Appeals Court ruled in December that New York’s common law doesn’t protect the public performance of pre-1972 sound recordings. Meaning that broadcasters in the state probably wouldn’t have to pay to air old hits from the likes of Bob Dylan, The Rolling Stones and others.
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Flo & Eddie argued otherwise, alleging in various suits that works authored before Congress began protecting sound recordings under federal copyright law couldn’t be misappropriated under state laws. They first got success in California before getting another win in New York.
A New York federal judge’s opinion in favor of Flo & Eddie then went up on appeal, and the 2nd Circuit certified the question of public performance rights to the state’s highest appellate forum. Meanwhile, over in California, SiriusXM came to a settlement with total payments to plaintiffs’ class depending on the outcome of the various appeals.
After the New York Appeals Court came to its limiting interpretation of performance rights under state law, attorneys for Flo & Eddie then went back to the 2nd Circuit and attempted to argue there was still an open question about whether SiriusXM had engaged in unfair competition.
But the 2nd Circuit thinks the public performance issue is determinative of all claims, and accordingly has reversed the district court’s denial of summary judgment. The result could save SiriusXM several million dollars, although there’s still some disagreement about the interpretation of the settlement.
While the U.S. Supreme Court could eventually tackle the issue of pre-1972 sound recording rights, it’s unlikely that the high court would accept the New York case as its vehicle because the main issue here pertains to interpretation of state, rather than federal, law.
