Second Circuit Scratches Royalties Against Sirius XM

MANHATTAN (CN) – Heeding guidance by New York’s highest court, the Second Circuit let satellite-radio giant Sirius XM skate Thursday on royalties for old Turtles songs and other works by artists who long predate the digital era.

Turtles members Mark Volman and Howard Kaylan brought the underlying class action in 2013 through their corporation, Flo & Eddie.

Though they fared well initially – a 2014 ruling by U.S. District Judge Colleen McMahon promised a hefty award of royalties – the Second Circuit reversed that summary-judgment decision Thursday.

Citing recent guidance by the state’s highest court, as the authority on New York law, the Manhattan-based federal appeals court said Flo & Eddie have no common-law right to performance fees for sound recordings created prior to 1972.

The distinction stems from acts by Congress to protect sound recordings made after Feb. 15, 1972, under the U.S. Copyright Act. The rights to digital audio transmissions meanwhile are governed by a law from 1995 – the Digital Performance Right in Sound Recordings Act.

Flo & Eddie failed to sway the circuit that they could still pursue relief based on the profits Sirius XM generates in “performing” unauthorized copies of Turtles recordings.

While this appeal was pending, Sirius reached a settlement in a related class action that Volman and Kaylan had filed against it. This Nov. 28, 2016, settlement filed in Los Angeles promises up to $99 million to settle a trio of class action copyright lawsuits.

If the artists had prevailed in New York, they would have been eligible for an additional $15 million under the settlement.

U.S. Circuit Judges Susan Carney, Denny Chin and Guido Calabresi handed down Thursday’s unsigned ruling.

Neither Flo & Eddie nor Sirius XM have returned requests for comment.

Flo & Eddie were represented by Harvey Geller of the Los Angeles firm Gradstein && Marzano.

Sirius XM was represented by Daniel Petrocelli of O’Melveny & Myers, also in Los Angeles.

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