N.Y. Court to Consider Rights for Pre-1972 Songs

MANHATTAN (CN) - The Second Circuit passed a copyright lawsuit from Flo and Eddie of the Turtles to a New York appeals court to decide if owners of sound recordings have a right of public performance.

"The case very much remains up in the air," said Mitch Stoltz, lawyer from the Electronic Frontier Foundation, which filed an amicus brief in the case.

"If this case were to go the way Flo and Eddie want, it would create a right that never existed" and would be "disruptive for innovation," Stoltz said in a phone interview Wednesday.

The Southern New York Federal Court ruled in 2014 that New York State "does afford a common-law right of public performance to copyright holders" and, consequently, Sirius XM's internal reproductions of Flo & Eddie Inc.'s recordings "were correspondingly not fair use."

Sirius XM petitioned the Second Circuit to allow an interlocutory appeal, which it did.

On Wednesday, the Second Circuit asked the New York Court of Appeals to take on the dispute and answer the question: "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?"

The New York City-based federal appeals court also invited the state's highest court "to reformulate or expand this question as appropriate."

Flo & Eddie Inc. is a company set up by Mark Volman and Howard Kaylan, two founding members of the 1960's American pop group the Turtles. Volman and Kaylan currently perform as the comedic musical duo Flo and Eddie. They were also members of Frank Zappa's rotating cast of the Mothers of Invention.

Flo and Eddie filed a class-action lawsuit against Sirius XM Radio in 2013 in New York on behalf of a class of owners of pre-1972 recordings. They also filed parallel class actions against Sirius XM in California and Florida the same year, alleging copyright claims based on each state's laws.

Similar lawsuits were filed against the streaming service Pandora for streaming pre-1972 songs without paying royalties.

Flo and Eddie disputed record label settlements, filing a motion in 2015 to stop a $210 million settlement with RIAA. A federal judge denied that motion.

Sound recordings made after Feb. 15, 1972, are subject to protection under the U.S. Copyright Act.

Congress created an exclusive performance right in post-1972 sound recordings performed by digital audio transmission. Federal protection of pre-1972 recordings does not apply to AM/FM radio broadcasts, according to the Second Circuit ruling.

Sirius XM argued in a May 2014 motion for summary judgment that a state-law public performance right,"if recognized, would be barred by the dormant Commerce Clause."

The Second Circuit responded in its Wednesday ruling that, "if we held that the dormant Commerce Clause banned all such rights, [Flo and Eddie] would lose regardless of New York law."

Sirius XM is the only satellite radio company in the United States, according to Forbes, and currently has more than 30 million subscribers.

Volman and Kaylan adopted their Flo and Eddie aliases in response to contractual obligations with the Turtles' recording label, White Whale, which eventually transferred the copyrights of Turtles songs to Flo and Eddie.

Flo and Eddie's songs from the 60s and 70s have been sampled by rap artists including De La Soul, Slick Rick and Gucci Mane. Their hits include "Happy Together," "Eleanor," and "She Would Rather Be With Me."

Correction: A previous version of the story incorrectly identified Stoltz as an attorney representing Sirius XM. Courthouse News regrets the error.

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