2nd Circuit Court To Hear SiriusXM Appeal Of Pre-1972 Royalty Ruling
April 17, 2015 at 4:05 PM (PT)
The 2ND CIRCUIT COURT has granted SIRIUSXM’s petition and take up the issue of whether NEW YORK protects the public performance of pre-1972 songs — and whether that violates the U.S. Constitution, reports THE HOLLYWOOD REPORTER.
SIRIUSXM appealed NEW YORK federal judge COLLEEN MCMAHON's decision, denying its summary judgment motion in TURTLES singers MARK VOLMAN and HOWARD KAYLAN’s lawsuit. She ruled that "acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law — only that they failed to act on it."
SIRIUSXM told the 2ND CIRCUIT, "Absent immediate review, the district court’s ruling leaves SiriusXM and other broadcasters with tremendous uncertainty, faced with a choice between stopping the broadcast of pre-1972 recordings to the public’s detriment; submitting to shotgun negotiations with sound recording owners; or facing massive liability as this case and others wend their way through the courts."
SIRIUSXM then asked that COURT, “Under NEW YORK law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?”
VOLMAN and KAYLAN (a.k.a. FLO & EDDIE) believe they do because state legislatures could’ve excised public performance from the "exclusive rights" enjoyed by pre-72 owners, but they didn't. SIRIUSXM, disagrees because there's no case law supporting the proposition, and that a performance right can only be created legislatively.
The satcaster also asked the 2ND, “Does the Dormant Commerce Clause prohibit the State of NEW YORK from enforcing a property right that it recognizes at common law?” SIRIUSXM's lawyers DANIEL PETROCELLI and ROBERT SCHWARTZ content that since it broadcasts to millions of subscribers across the country, that the "practical effect of applying a NEW YORK performance right to SIRIUSXM would thus be to require SIRIUSXM to comply with New York law nationwide."
A schedule on when the arguments take place will come soon. Speaking of legislative solutions, the "Fair Play Fair Pay Act" was introduced, which among other things, would establish a public performance right under federal law for recordings made before 1972.