New York Broadcasters Applaud Performance Fee Decision

Broadcasters won a court victory in the ongoing battle with artists over compensation for older music played on radio and TV, a victory being celebrated by the New York State Broadcasters Association.

The U.S. Court of Appeals for the Second Circuit, which is considering the issue of pre-1972 music rights per a suit filed by Flo & Eddie, representing original members of the The Turtles ("Happy Together") against Sirius XM, asked the New York court whether the state had "a right of public performance for creators of sound recordings under New York law and, if so, what was the nature and scope of that right."

In a 4-2 decision this week, the New York State Court of Appeals ruled that the state's common-law copyright does not recognize a right of public performance for creators of sound recordings.

Sirius XM plays the Turtles pre-1972 songs without a license and without paying for them. Artists and record companies claim that violates common-law copyright and is infringement and unfair competition.

The U.S. District Court for the Southern District of New York had denied Sirius XM's motion to dismiss the complaint, saying New York did have a common-law right of public performance for pre-1972 sound recordings, so Sirius XM airplay without permission or payment was out of bounds.

Sirius appealed that decision to the Second Circuit, which asked the New York court for the answer it has now received. That answer buttresses Sirius XM’s appeal and broadcasters' arguments that pre-1972 recordings are fair game under fair use, at least in New York.

David Donovan, president of the New York State Broadcasters Association, called it a victory for TV and radio broadcasters. “While the case directly involved Sirius XM, it was clear that the decision could affect broadcasters. This is an important decision that will have national implications," he said.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.