Defeat for Turtles in Sirius XM Copyright Case

ALBANY, N.Y. (CN) – Dealing a blow to musicians scrambling for royalties in the digital-music era, New York’s highest court sketched out defeat for an attempted class action by the duo behind the 1967 hit “Happy Together.”

The Turtles are one of many acts whose rights hinge on a patchwork of state laws and court decisions filling the void of federal laws that haven’t been updated in decades.

While sound recordings made after Feb. 15, 1972, are protected by the U.S. Copyright Act, the rights to digital audio transmission are governed by a law from 1995 – the Digital Performance Right in Sound Recordings Act (DPRA).

Turtles members Mark Volman and Howard Kaylan brought the lawsuit at hand against Sirius XM Radio in 2013.

They sued through their corporation, Flo & Eddie, and fared well. In 2014, a federal judge indicated that she would grant Flo & Eddie summary judgment on liability.

U.S. District Judge Colleen McMahon’s ruling was unprecedented – finding that New York affords a common-law right of public performance to protect copyright holders of pre-1972 sound recordings. Sirius XM faced a hefty bill in connection to the judgment that its internal reproductions of pre-1972 recordings did not constitute fair use.

Rather than rule on the satellite radio’s giant’s appeal, however, the Second Circuit referred the matter to the state’s highest court, as the authority on New York law.

The Court of Appeals was divided on Tuesday in saying state copyright law recognizes no such right as the one McMahon found.

Just one pun emerges from the 13-page lead opinion, which calls it “illogical” to find new rights only now that the record companies and artists no longer enjoy a symbiotic relationship with radio stations.

The participants in the music industry “have co-existed for many years and, until now, were apparently ‘happy together,’” Judge Leslie Stein wrote for the majority.

“While changing technology may have rendered it more challenging for the record companies and performing artists to profit from the sale of recordings, these changes, alone, do not now warrant the precipitous creation of a common-law right that has not previously existed,” Stein added.

SiriusXM attorney Dan Petrocelli applauded the court’s decision. “It restores the law to the practice and consensus that have existed since the dawn of the radio and music industries,” Petrocelli said.

The Electronic Frontier Foundation, which filed an amicus brief in the case, also tweeted its appreciation of Tuesday’s decision. “New York high court does copyright right, refuses to create new rights for old recordings,” the group said.

Stein emphasized in the ruling that the failure to enforce one rights does not waive them, but that the timeline here cannot be ignored.

“The fact that holders of rights to sound recordings took no action whatsoever to assert common-law protection for at least the past four decades — when the absence of a comprehensive federal right of public performance for sound recordings was clear — supports our conclusion that artists and copyright holders did not believe such a right existed in the common law,” Stein wrote.

Even McMahon had acknowledged, the ruling says, “that such a right was ‘unprecedented,’ would upset settled expectations, and would ‘have significant economic consequences.’”

Stein said it should be left to the New York Legislature to recognize such a right.

Ultimately, it cannot be overstated that, if this court were to recognize a right of public performance under the common law, we would be ill-equipped — or simply unable — to create a structure of rules to properly guide the application of that right,” she wrote. “The legislative branch, on the other hand, is uniquely qualified, and imbued with the authority, to conduct the required balancing of interests and make the necessary policy choices.

The court was split 4-2 with Chief Judge Janet DiFiore taking no part. DiFiore only joined the Albany-based court in February 2016.

Judge Sheila Abdus-Salaam joined a lengthy dissent in which Judge Jenny Rivera condemned the “parochialism that justifies turning a blind eye to the exploitative practices of today’s music industry made possible by technological advances and that, as a consequence, excludes from our common-law copyright in sound recordings a quintessential property interest in the use of these works, and limits a creator’s opportunity to derive financial benefit from their performance.”

Sirius has a library of more than 280,000 songs, with 42,000 of those songs having been recorded prior to 1972, the 14-page dissent says.

The New York case was one of many Flo & Eddie brought around the country. In an amicus brief to the duo’s Florida challenge, the Electronic Frontier Foundation emphasized that affording new rights here would trigger a tidal wave of lawsuits.

“A decision in favor of Flo & Eddie will leave no effective way to license pre-1972 sound recordings because the mechanisms for doing so have never existed,” the group said. “And with the creation of new rights in law comes the risk of litigation.”

In the New York complaint, other friends of the court included the Recording Industry Association of America, National Association of Broadcasters, iHeartMedia, New York State Broadcasters Association, Howard B. Abrams, Association for Recorded Sound Collections; CBS Radio, Pandora Media, and Public Knowledge.

A quintessential 1960s recording, “Happy Together” reached the No. 1 spot on the Billboard charts in 1967. Flo & Eddie also performed a two-year stint in Frank Zappa’s avant-rock fusion band the Mothers of Invention, billed as “Phlorescent Leech & Eddie.”

In their in 1976 song “Keep It Warm”, Flo & Eddie sang the lines “Write another song for the money, Something they can sing, not so funny, Money in the bank to keep us warm.”

Every year since 2010, The Turtles, featuring Flo & Eddie perform in a package tour called the “Happy Together” tour, with a rotating cast of pre-1972 performers breaking out their catalog of hits from the ’60s and early ’70s.

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