In April 2016, in Flo & Eddie v. Sirius XM Radio, 821 F.3d 265 (2d Cir. 2016), the U.S. Court of Appeals for the Second Circuit certified the following question to the N.Y. Court of Appeals: “Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?” On Dec. 20, 2016, the N.Y. Court of Appeals responded in an opinion concluding that there is no public performance right for sound recordings in New York. Flo & Eddie v. Sirius XM Radio, 2016 WL 7349183 (N.Y. 2016). The holding applies only to sound recordings created prior to Feb. 15, 1972, the effective date of an amendment to the U.S. Copyright Act providing federal copyright protection for sound recordings and preempting any state law copyright protection for sound recordings created after that date.
The treasure trove of pre-1972 hits (by, for example, the Beatles, the Rolling Stones, Bob Dylan, Elvis Presley and many others) has spawned a multitude of civil actions, appeals to the Second, Ninth and Eleventh Circuits, certifications to the highest courts of New York and Florida, and a complex class action settlement agreement with multiple contingencies depending primarily on whether the pending actions ultimately recognize a public performance right. This article will focus on the resolution of that issue in New York.
