New York Court of Appeals Finds No Right of Public Performance Under New York Law for Creators of Sound Recordings

–by Elizabeth Snyder

Citation: Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 172, 2016 N.Y. LEXIS 3811 (Dec. 20, 2016).

Abstract: Responding to a certified question from the Second Circuit Court of Appeals regarding the existence of a right of public performance in sound recordings, the New York Court of Appeals held that no right of public performance exists under New York common law to protect creators of pre-1972 sound recordings.


On December 20, 2016, the New York Court of Appeals answered a question certified by the Second Circuit Court of Appeals regarding the existence under New York law of a right of public performance for creators of sound recordings before 1972. Finding that New York common law does not recognize any such right, the court answered the question in the negative.

In the federal context (mainly through the Digital Performance Right in Sound Recordings Act of 1995), sound recording owners have a right “to control or authorize the public performance of the copyrighted work, but only for performances ‘by means of a digital audio transmission.”’ Under federal law, the right of public performance is limited to digital radio services, and does not apply to AM/FM radio stations, bars, restaurants, or stores that play music.

The action was commenced by Plaintiff, a corporation owned by two of the original members of The Turtles, as a federal class action on behalf of recording artists, or the owners of the rights, of pre-1972 sound recordings. The action alleged common-law copyright infringement and unfair competition against Defendant, the nation’s biggest satellite digital radio service.

The United States District Court for the Southern District of New York found that New York does recognize a common-law right of public performance in protection of copyright holders for pre-1972 sound recordings. On Defendant’s appeal, however, the Second Circuit Court of Appeals found that the case presented a novel issue of law and certified the aforementioned question to the New York Court of Appeals.

The court began its opinion with a discussion of federal copyright law, noting that state common law applies to copyrights only insofar as federal statutes fail to do so. Sound recordings were protected by federal statute for the first time under the Sound Recording Amendment of 1971. However, the protections afforded by this amendment only extended to those recordings produced after February 15, 1972. Under that statute, sound recordings were not afforded a right of public performance. In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act, which authorized the application of any rights under state statutes or common law (that do not conflict with federal law) to sound recordings produced before February 15, 1972 until February 15, 2067.

The court noted that state court cases in New York have not addressed whether the right of public performance for sound recordings inheres in common-law copyright. Noting that most decisions from lower courts in New York and federal courts applying New York law have dealt with the issue of piracy, the court nonetheless conducted a survey of its earlier decisions to determine that common-law copyright protects only against the unauthorized reproduction of a copyrighted work, but does not prevent a purchaser from playing a copy of a sound recording.

The court further bolstered its decision with an appeal to societal expectations. According to the court, the fact that Plaintiff took no action to assert its common-law rights for four decades supported its finding that neither artists nor copyright holders allege the existence of such a right. The court instead endorsed the arrangement identified by the Third Circuit, wherein the record companies and artists exist in a “symbiotic relationship” with radio stations, allowing their music to be played to “encourage name recognition and corresponding album sales.”

Ultimately, the court concluded that New York common law “has never recognized a right of public performance for pre-1972 sound recordings,” and that to find otherwise would be to produce “extensive and far-reaching” consequences that the court is not equipped to handle. Instead, recognition of such a right must come from the legislature, which is better able than the courts to balance competing interests and create a structure of rules to govern a right of public performance.

Posted in Copyright Law, Intellectual Property, Legal Pulse