NY Court Rules In Favor Of SiriusXM On Pre-1972 Performance Fees

Wins This Round

SIRIUSXM got some good news from NEW YORK's Court Of Appeals, which ruled the satcaster can play music recorded prior to 1972 without paying any royalties.

The NEW YORK State Court of Appeals rendered an opinion in the FLO AND EDDIE V. SIRIUS XM RADIO INC., case YESTERDAY afternoon (12/20). The case was referred to NEW YORK’s highest from the U.S. Court of Appeals for the Second Circuit, and this opinion will guide a final decision in the case. The question before the court was whether NEW YORK common law recognized a right to a performance fee for music recorded prior to 1972.

In a 4-2 decision, the Court ruled in favor of local radio and television stations.  Writing for the majority Justice LESLIE STEIN stated, “Simply stated, NEW YORK’s common-law copyright has never recognized a right of public performance for pre-1972 sound recordings.” 

NEW YORK STATE BROADCASTERS ASSOCIATION Pres.DAVID DONOVAN stated, "We are delighted that the court agreed with our amicus brief that NEW YORK law does not recognize a right to a performance fee for music recorded prior to 1972.  The majority expressly recognized, '[T]hat 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 recognized NYSBA’s concerns that both broadcasters and the public would be harmed if it created such a new right," continued DONOVAN. "The majority found that 'radio services may choose to limit or cease their broadcasts of pre-1972 music.  The public will then be deprived of this music and artists will be deprived of their interest in their performances that is generated by radio broadcasting. While the case directly involved SIRIUSXM, it was clear that the decision could affect broadcasters. This is an important decision that will have national implications."

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