United States: New York Court of Appeals Says No Common Law Public Performance Right For Pre-1972 Sound Recordings

On December 20, 2016, the New York Court of Appeals, the highest court in the state, held that no common law public performance right exists for pre-1972 sound recordings. The issue of whether a common law public performance right exists for pre-1972 sound recordings in New York was an issue of first impression. Although this holding is only binding on New York state courts and federal cases decided under New York law, it is anticipated that, coming from a premier IP jurisdiction, it will also be highly influential for courts throughout the nation that are adjudicating or may adjudicate similar cases.

In 2013, members of the band, The Turtles, initiated a lawsuit against SiriusXM, the nation's largest satellite digital radio service, claiming rights to royalties for SiriusXM's broadcasts of their pre-1972 recordings. The radio service broadcasts pre-1972 sound recordings, including those recorded by The Turtles, but does not pay the group or other artists for broadcasting the recordings.

The court was tasked with determining whether the band members had a right to control public performances of works that were produced prior to 1972. In coming to the conclusion that the members had no such right, the court initially recognized that Congress did not provide a public performance right for pre-1972 sound recordings. Congress first provided copyright protection to sound recordings in 1971, effective February 15, 1972, but limited the protection to recordings produced after such effective date. Further, it did not initially grant owners of post-1972 copyrights in sound recordings a public performance right. Even the Digital Performance Right in Sound Recordings Act of 1995 ("DPRA"), effective February 1996, only provided a limited and highly regulated digital performance right that did not extend to nonsubscription broadcast transmissions, namely performances transmitted through AM/FM radio stations. Therefore, the court found significant that Congress has never recognized a general public performance right for post-1972 sound recordings nor provided generally for federal protection of pre-1972 sound recordings. It emphasized, however, that Congress expressly did not pre-empt any existing state laws concerning pre-1972 sound recordings, and such rights under state statute or common law may be asserted until February 15, 2067.

The court then analyzed its case law to determine whether New York courts have recognized a public performance right for pre-1972 sound recordings. It highlighted cases that discussed distribution and reproduction rights for owners of copyrighted works – these rights being necessary to prevent piracy of the works – but determined that the question of whether a public performance right in pre-1972 sound recordings existed in common law was an issue of first impression.

Finding no cases that addressed the issue, the New York Court of Appeals answered the question in the negative. It explained that the failure of artists to assert the right in court supports the contention that no such right existed. In fact, the court expressed its belief that artists failed to assert the right because they derived benefits from radio stations playing their music. For example, artists and record companies experienced an increase in album sales as a result of radio play.

The court also expressed concern about courts establishing a public performance right where none existed before. It explained that courts do not have the resources to balance the various interests that may be affected if such a right were to exist. It further encouraged artists to, instead, ask Congress to pass legislation on the issue. Congress, it explained, has the proper tools to establish the right and the scope of its protection.

Whether Congress should establish this right was a question the court seemed to also answer in the negative. The court seemed skeptical about using resources to expand copyright protection to pre-1972 works when, in its view, such a protection would not encourage the creation of new music because the works were produced decades ago.

In regard to the parties, the New York Court of Appeals noted that this holding will allow SiriusXM to avoid paying a higher rate in royalties to The Turtles members. Although the parties settled their dispute before the issue was raised in this court, the settlement amount was reportedly contingent on the result of actions pending between the parties, including this one.1

In regard to the resolution of similar cases, this holding represents an understanding that state courts should adjudicate this issue under state law. As the court discussed, federal copyright law does not provide an answer to the dilemma presented by the facts of this case. Therefore, federal courts should realize that resolution of this issue should be handled by the states or, at the very least, state courts should provide guidance regarding the existence of the right under state law.

Federal courts seem to be asking for such guidance. This New York Court of Appeals decision was the result of a certified question regarding state law from the Second Circuit Court of Appeals. Additionally, at least one other federal court has followed the Second Circuit's example. The 11th Circuit has also asked the Florida Supreme Court to determine whether a public performance right exists for pre-1972 sound recordings under Florida state law. Perhaps the New York Court of Appeals' decision may play a role in the analysis to be engaged in by the Florida Supreme Court.

Further, this case may affect the future of federal court decisions regarding the existence of a public performance right for pre-1972 sound recordings under state law. The U.S. District Court for the Central District of California granted summary judgment in favor of The Turtles, finding that such a right existed under California state law. Although the Central District's decision was based on a state statute rather than the common law, the understanding gained from the recent New York case and the pending Florida case may influence whether the decision is appealed or eventually certified to the California state courts. Further, federal courts may be more reticent about ruling on state law applied to pre-1972 sound recordings knowing that their decisions may eventually be overruled or revised by the state courts.

The Court of Appeals decision is also notable for a well-reasoned concurrence and dissent that each provide insight on how similar cases might be viewed by other courts. In particular, the concurrence includes a detailed discussion on the kinds of uses of sound recordings that fall on a continuum running from those that are clearly performances to those that are clearly reproductions and distributions, with some uses that don't comfortably fall within either category.

Ultimately, state courts will have to decide whether a public performance right in pre-1972 sound recordings exists in their state. This will present a hurdle to enforcing any such performance right on a uniform nationwide basis. Consequently, copyright owners in pre-1972 sound recordings should consult their attorneys regarding any interest they may have in public performances of their pre-1972 sound recordings, and, if the state has or appears to have granted the right, how best to enforce it.


1 See Jonathan Stempel, Sirius May Settle Music Copyright Suit Brought by the Turtles for $100M, insurancejournal.com, Nov. 30, 2016, available at http://www.insurancejournal.com/news/national/2016/11/30/433536.htm.

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