Daniel Petrocelli of O’Melveny & Myers changed the tide of cases over rights to pre-1972 recordings for the entire broadcasting industry when he won in the New York Court of Appeals for Sirius XM.
After a string of losses for broadcasters in other venues, the New York high court found that no common-law right of public performance exists in New York state forcing Sirius XM to pay to air pre-1972 recordings. Petrocelli recently told The Recorder about the new approach he and his team brought to the issues at play.
What were the things that had previously gone against Sirius in this case and others before you scored this appellate win? What sorts of hurdles was the company facing? Pre-1972 recordings had always been freely and widely performed without restriction. That changed in 2014 when, prior to our involvement in the litigation, federal courts in New York and California held that, under state law, the rights in a pre-1972 recording include an unfettered right to control all public performances of that recording, in other words, when and where it is played, by whom, and for how much.
Overnight, these rulings turned thousands of broadcasters and others who perform music into serial infringers, upending the entire industry. Thus, when we took over the litigation, we were faced with sweeping rulings against Sirius XM that imperiled the rights not only of Sirius, but all radio broadcasters, to play and the public to hear generations of musical recordings.
How were you and your team able to turn the tide? We developed new theories for approaching the case, including that it is the province of legislatures, not courts, to create broad new rights that never existed before and that affect many stakeholders. In 2015, we succeeded in convincing the Florida district court that the broad rights claimed by plaintiff did not exist.
That was the first ruling that turned the tide and was widely touted as one of the most important copyright decisions of the year. We also convinced the New York district court to allow interlocutory review of its decision against Sirius XM, and the Second Circuit certified the lynchpin performance-right issue to the New York Court of Appeals, the state’s highest appeals court.
In December 2016, the New York Court of Appeals and Second Circuit ruled decisively in favor of Sirius XM, echoing our arguments that New York law does not grant pre-1972 recording owners any right to demand permission or compensation for performances of their recordings, and such a controversial new right could only be created by a legislature.
What sorts of skills does a litigator need to have in order to score a come-from-behind victory for a client? Never stop thinking and never get discouraged.
How does playing from behind in litigation differ from getting out to an early lead in a case? Coming from behind forces you to approach arguments differently and more creatively. It also forces you to work harder, which is always a winning recipe.
Who is a litigator outside your own firm that you admire and why? John Quinn, because he admires good lawyers wherever they work.