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Federal court asks New York court: so, is there a performing right or not?

By | Published on Thursday 14 April 2016


The federal appeals court in the US has declined to rule on whether or not the copyright in pre-1972 sound recordings includes a performing right in New York State, for now at least, it being a state law matter after all.

As much previously reported, the specifics of the sound recording copyright in golden oldie tracks has been in the spotlight in recent years in America, because US-wide federal copyright law only protects sound recordings released since 1972, whereas earlier records are protected by state-level copyright rules.

This has become an issue because federal copyright law Stateside says that the sound recording copyright only comes with a digital performing right, meaning AM/FM radio stations – unlike their counterparts elsewhere in the world – do not have to pay record labels any royalties when they play their recordings. Online and satellite radio services, though, are required to get licences from the labels and pay royalties.

State-level copyright laws make no distinction between traditional and online radio services, meanwhile AM/FM stations have never paid any royalties to labels for recordings from the 1950s and 1960s either, so Pandora and Sirius argued that their obligations to pay record companies only applied to recordings released after 1972. But the record industry did not agree, arguing that there was actually a general performing right for sound recordings at a state-level, even though no label had ever enforced that right before.

Various parties went legal on this matter, with the cases pursed by one time Turtles Flo & Eddie leading the charge. And in California and New York they basically won the argument, with the judge in the New York case adding that it didn’t matter that no artist or label had ever enforced their performing rights in the US before, they still could now. Even though that technically means AM/FM stations could now be liable to pay royalties on older recordings too, just like Pandora and Sirius.

Meanwhile, Pandora and Sirius themselves settled with the majors over pre-1972 tunes, but Flo & Eddie weren’t part of that deal, and Sirius’s appeal against the rulings in favour of the 1960s musicians is still going through the motions. Hence the Second Circuit Court Of Appeals was considering the matter this week.

Though it didn’t do too much considering, because the appeal judges seem as confused as the rest of us as to whether or not we are now saying that there is a performing right as part of the sound recording copyright in New York state. To move forward on the issue, therefore, they have posed a nice clear question to the New York appeals court: “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?”

Although this all about state-level copyright law, there is a federal law element, in that Sirius has argued that if rules about performing rights can differ from state to state, that would interfere with interstate commerce, which – depending on how you choose to read the US Constitution – could be unconstitutional.

But, says appeal judge Guido Calabresi, according to The Hollywood Reporter, “the question of whether such a [state-level performing] right would violate the dormant Commerce Clause is not something we can adjudicate without knowing what, if any, limitations New York places on such rights, if they do exist”. So, New York Appeals Court, sort out all that first, and then the Second Circuit will muse the interstate commerce point.

Though do note Sirius, says the judge, “it is not the case that all rights of this sort violate the dormant Commerce Clause [in the US Constitution]; some might, some might not”.