New York State Broadcasters Association Files Amicus Brief In Turtles-SiriusXM New York Appeal
August 7, 2015 at 4:17 AM (PT)
The NEW YORK STATE BROADCASTERS ASSOCIATION has filed an amicus brief in the Second Circuit U.S. Court of Appeals in THE TURTLES/FLO AND EDDIE's MARK VOLMAN and HOWARD KAYLAN's case against SIRIUSXM RADIO over pre-1972 music royalties, reacting to the lower court's assertion in dicta that the performance rights being established under common law might apply to broadcast radio as well.
The brief argued that NEW YORK state law does not support a common law performance right in sound recordings, rejecting the lower court's analogy to rights in plays or films, and that upholding such rights would be "impractical and destructive." "(T)he District Court’s sweeping alteration of the law is unsupported by prior case law, legislative history at the federal level, and the history of the recording and broadcasting industries in NEW YORK State," the NYSBA wrote, adding that "broadcast radio is fundamentally different from satellite radio; broadcast radio is not subscription based and has been a fixture in the music industry for decades. In fact, broadcast radio is the very medium that made Respondent’s music famous by disseminating it to the public at large at no cost."
Arguing that "the District Court fashioned a new common law performance right in sound recordings that heretofore never existed," the brief asserted that radio airplay sells music and that common law copyrights for sound recordings have never included performance rights but only against unauthorized reproduction. And the brief argued that ruling to expand the imputed performance right would result in "financial distress for broadcasters, perverse incentives for artists, and uncertainty for everyone."