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2nd Circ. Passes on SiriusXM Radio Copyright Case

By Jonathan R. Tung, Esq. | Last updated on

The Second Circuit's Court of Appeals decided to hold off on entering a potentially ground-moving decision involving class actions brought by members The Turtles, the rock group from the 70s. In the suit, they contended that federal copyright laws do not protect sound recordings made before 1972, and that state laws must apply.

If true, a favorable ruling would have potentially made bars, restaurants, and other venues mass copyright infringers.

The Turtles

Flo and Eddie of the Turtles brought a putative class action against SiriusXM alleging that state laws protected pre-1972 sound recordings of the group's work. The major issue at hand is whether or not the owners of recordings made and published before 1972 can stop SiriusXM from airing those recordings without first dolling out agreed-upon compensation. Since this has the potential of affecting literally thousands of pieces of work that have perhaps entered into the public domain for decades, the decision could a game-changer for the industry and other satellite industries that depend on "oldies."

A Pattern

In 2014, New York federal district judge Colleen McMahon followed in the footsteps of a California jurist who gave the Flo and Eddie pair a major victory that sent a chill down the spines of DJs and radio operators. It is an "accepted fact of life in the broadcast industry for the last century" that copyright owners would not collect royalties for performances of their works.

Although the case went before the Second Circuit, the federal appeals court was quick to realize that this was an issue of state law interpretation. Rather than take that job on by themselves, they passed the buck back down to New York's highest court. Here was the legal issue that they refused to touch: Is there a right of public performance for creators of recordings under New York Law and what is the nature and scope of that right?

Passing the Buck

Or not exactly. In the view of the Second Circuit, the responsibility of interpreting New York law rests squarely upon New York's shoulders. It is a balancing test that rests on a value judgment and that value judgment "is for New York to make," said the circuit.

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