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Posted: December 28, 2016

No New York Common Law Right to Control Public Performances of Copyrighted Recordings

On December 20, 2016, the Court of Appeals issued a decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2016 NY Slip Op. 08480, holding that there was no New York common law right to control the public performance of copyrighted recordings.

In Flo & Eddie, the plaintiff brought a putative class action against the defendant satellite digital radio service, which played pre-1972 songs to which the plaintiff holds the copyright, alleging common-law copyright infringement and unfair competition in federal court. The Defendant moved for summary judgment, which the district court denied. On appeal, the Second Circuit certified to the Court of Appeals the question of whether there is a New York common law right to control the public performance of copyrighted recordings.

The Court of Appeals held that there is not, explaining:

Simply stated, New York’s common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now. Even the District Court here, while finding the existence of a common-law copyright of public performance in sound recordings, acknowledged that such a right was unprecedented, would upset settled expectations, and would have significant economic consequences. Under these circumstances, the recognition of such a right should be left to the legislature.

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