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.