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<i>Decision of Note</i><br>NY Apps. Court Says Pre-'72 Recordings Have No Public Performance Right
No common law right of public performance exists in New York state to compel Sirius XM Radio to pay fees for the use of pre-Feb. 15, 1972 sound recordings by popular artists such as The Turtles, the state's highest court ruled in Flo & Eddie Inc. v. Sirius XM Radio Inc., 172.
The 4-2 New York Court of Appeals majority said that while it is not unsympathetic to the anomalies in copyright laws that allow letting some artistic works to be used for profit by others without compensation to their creators, it should be up to Congress to define the public performance rights sought by creators of The Turtles' music, as it did for post-Feb. 14, 1972 recordings under the federal Copyright Act of 1976.
Court of Appeals Judge Leslie Stein noted for the majority that it took Congress nearly 20 years of studying the nature and scope of sound recordings before it came up with the 1976 law. “Ultimately, it cannot be overstated that, if this court were to recognize a right of public performance under the common law, we would be ill-equipped — or simply unable — to create a structure of rules to properly guide the application of that right” to pre-1972 recordings, Judge Stein wrote. “The legislative branch, on the other hand, is uniquely qualified, and imbued with the authority to conduct the required balancing of interests and make the necessary policy choices.”
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