In a victory for broadcasters, the Second Circuit Court of Appeals has cited a New York state appeals court's ruling that there is no right to performance fees for the creators of pre-1972 sound recordings and reversed a district court's denial of a SiriusXM motion for summary judgment and directed the court to dismiss the case with prejudice, meaning it can't be refiled.

Flo & Eddie, a California corporation with the rights to songs by the 1960s group The Turtles ("Happy Together," "She'd Rather Be With Me"), had sued SiriusXM for itself and other pre-1972 artists claiming infringement of their copyright by caching and broadcasting (publicly performing) their songs for profit.

SiriusXM plays the Turtles pre-1972 songs without a license and without paying for them, arguing it is fair use—at least in New York. 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 Sirius XM 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.

The Second Circuit had 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 December 2016 decision, the New York Appeals Court ruled that the state's common-law copyright does not recognize a right of public performance for creators of sound recordings.

Given that guidance, the Second Circuit said the issue was settled in SiriusXM’s favor.

“This is an important decision for local radio stations in New York," said David Donovan, president of the New York State Broadcasters Association, following the decision. "We are grateful to the courts for accepting the arguments contained in our amicus briefs. This definitive ruling should put an end to the legal proceedings in New York."

"The courts’ decisions recognized the fundamental relationship between local radio stations and the music industry," said Donovan. "As the New York State Court of Appeals observed:'[R]ecord companies and artists had a symbiotic relationship with radio stations and wanted them to play their records to encourage name recognition and corresponding album sales.' This mutually beneficial relationship continues to this day.”



(Photo via Tori Rector's Flickr. Image taken on July 21, 2016 and used per Creative Commons 2.0 license. The photo was cropped to fit 3x4 aspect ratio.)