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NY Court: Sirius XM not on hook to performers for pre-1972 music

The State Court of Appeals, in a 4-2

The State Court of Appeals, in a 4-2 decision, said that New York copyright law doesn't "recognize a right of public performance for creators of sound recordings," meaning Sirius XM doesn't have to pay for pre-1972 recorded performances. Credit: Newsday / Jim Peppler


New York’s highest court effectively ruled Tuesday that radio broadcasters don’t have to pay royalties to performers in pre-1972 recordings, a decision that will leave former members of The Turtles singing anything but “Happy Together.”

At issue was a series of class-action lawsuits that sought to change the way royalties are handled for records made before the federal Copyright Act took effect in 1972.

In a ruling likely to affect the federal cases, New York’s Court of Appeals ruled, in a 4-2 decision, that state law didn’t mandate that radio broadcasters pay a royalty to performers just for playing music that was recorded before federal protections kicked in.

Judge Leslie Stein, writing for the majority, said the “question before us” is not whether pre-1972 copyright protection was a “good idea,” but whether state law afforded such rights. The answer is “decidedly” no, Stein wrote.

The lawsuits were brought by Flo & Eddie Inc., a corporation founded by two of The Turtles’ original members, Mark Volman and Howard Kaylan, against Sirius XM Radio, the satellite radio company. The Turtles, best known for the song “Happy Together,” had a number of Top 40 hits in the 1960s.

Flo & Eddie acquired control of The Turtles recordings in 1971, according to court documents.

They filed a class-action lawsuit in New York in 2013, looking for radio broadcasters to pay an undisclosed amount of compensation for playing pre-1972 recordings. A judgment in the former rockers’ favor would have “changed the course of broadcast music,” one analyst wrote at the time.

Even the federal courts acknowledged the outcome would have “significant economic consequences” — because it wouldn’t apply just to The Turtles but also to recordings by The Beatles, Louis Armstrong and untold numbers of performers.

Flo & Eddie (who went on to perform with Frank Zappa and then form their own musical comedy duo) had filed similar lawsuits in California and Florida.

While the 1972 federal copyright law gave limited protection to sound recordings made after that, any previous recordings were subject to state copyright laws. That circumstance prompted the federal Second Circuit Court of Appeals, which was handling one of the class-action claims, to ask New York’s top court to clarify the state’s copyright law before proceeding with the lawsuit.

On Tuesday, a sharply divided court sided with Sirius XM.

The Flo & Eddie lawsuit, the majority of judges held, basically asked for the “creation of a common-law right that has not previously existed.”

“We hold that New York common law does not recognize a right of public performance for creators of pre-1972 sound recordings,” Judge Stein wrote.

This doesn’t mean Flo and Eddie won’t get anything. According to numerous media reports, the musicians and Sirius XM reached a conditional settlement last month in which the litigants would get a minimum of $25 million even if they lost the case and a maximum of $40 million if they won; Sirius XM also agreed to pay a 10-year licensing fee “going forward” for up to $59 million.

Henry Gradstein, a lawyer for Flo and Eddie, said in a statement: “ Regardless, today’s decision does not change the fact that the recently reached settlement in the California action will provide the class with a recovery of at least $25 million, with the possibility of up to $99 million depending on the ultimate outcome of the three appeals. For those reasons, and because the laws are state specific (for example, California has a statute directly on point), the good fight to protect artist’s rights rages on.”

According to court documents, Sirius XM said it pays royalties to the owners of musical compositions, but not to Flo & Eddie or other owners of pre-1972 sound recordings because, it contended, they have no legal right to demand payment when their recordings are played.

Sirius XM attorneys didn’t return a call to comment.

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