Radio Stations Victorious in Pre-72 Court Battle
December 20, 2016
In a major victory for radio broadcasters, New York’s highest appeals court ruled in Flo & Eddie, Inc. v. Sirius XM Radio, Inc. that under New York common law, recording artists have no property right of public performance in pre-1972 sound recordings. NAB filed an amicus brief in support of Sirius XM and we’re pleased that the Court of Appeals’ opinion and analysis largely reflected our positions.
The New York Court of Appeals asserted that “consistent with its name, copyright prevents copying of a work, but does not prevent someone from using a copy, once it has been lawfully procured, in any other way the purchaser sees fit.” The distinction between common law copyright and performance rights, the divergence in legal protection of the two types of rights and the need to limit prior New York law to copyright had been a central theme of NAB’s brief.
The Court noted that it was evident from the consistent efforts of the recording industry to secure federal copyright protection for sound recordings that no common law public performance rights in such recordings existed. Moreover, the Court declared that existence of a common law right was inconsistent with the long history of record company promotion of free radio airplay; it accepted the “common sense explanation . . . that the record 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.”
The Court also noted that it was disinclined to recognize a right of public performance for the first time because “recognizing new rights in this complex area of law involves a delicate balancing of numerous competing interests, requiring an intricate regulatory scheme that can be crafted only by a legislative body.” The Court highlighted the inability of courts to create centralized royalty boards, the inability of courts to apportion royalties among musicians and record companies and the potential negative effects on musical composers if radio stations cut back on playing pre-1972 tracks.
The New York Court of Appeals decision that New York’s common law doesn’t protect the public performance of pre-1972 sound recordings is a great victory for radio broadcasters. We will continue to closely monitor similar cases and file briefs as warranted to ensure that over-the-air broadcasting is excluded from any common law performance right.
