13 Civ. 05784

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Today, the New York Court of Appeals, in response to a question certified from the Second Circuit (after being certified for interlocutory review by Judge McMahon), held that New York common-law copyright law does not recognize a right of public performance for creators of sound recordings predating the 1972 federal Copyright Act.  The question was certified as part of a putative class action of artists of pre-1972 sound recordings (led by The Turtles, who wrote “Happy Together”) seeking royalties from Sirius XM Radio for allegedly playing recordings without permission.
Continue Reading New York Court of Appeals Answers Question First Raised by Judge McMahon: No Common Law Right of Public Performance For Pre-1972 Sound Recordings

The New York Court of Appeals has accepted a certified question from the Second Circuit regarding whether New York copyright holders for pre-1972 recordings (governed by state copyright law, and not the federal Copyright Act) have a right to exclusive public performance of those recordings.  The case, initially before Judge McMahon, arose after Sirius XM …

In an opinion today, Judge McMahon granted an interlocutory appeal on the following question:

Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance of those sound recordings?

She concluded, under the standards for interlocutory appeal, that there were substantial grounds for a difference of opinion on the issue:
Continue Reading Judge McMahon Grants Interlocutory Appeal of Case Challenging Sirius Radio’s Right to Broadcast Songs Predating 1972 Copyright Act

In an opinion  yesterday in the case challenging Sirius satellite radio’s ability to broadcast songs predating the 1972 copyright act (see prior posts here), Judge McMahon rejected Sirius’s argument that two members of the band the Turtles (known for “Happy Together” and other songs) gave Sirius and implied license, or otherwise waived their rights, by appearing as guests on Sirius radio and not objecting to the Turtles songs being played for years on Sirius.
Continue Reading Judge McMahon: Turtles’ Appearance as Guests on Sirius Radio Does Not Waive Copyright Claims

In an opinion Friday, Judge McMahon denied the satellite radio company Sirius’s motion for summary judgment in a proposed class action by members of the band The Turtles asserting New York common law copyright claims for songs recorded prior to the 1972 federal Copyright Act, which preempted later state law claims.  Further, since it appeared the facts were not in dispute, Judge McMahon ordered Sirius to show cause by December 5 why summary judgment should not be entered against it. Judge McMahon recognized that her ruling (and a recent similar one in California) would likely cause great disruption to satellite radio providers and others who have generally not paid to broadcast pre-1972 recordings, but said that those concerns should be directed to the legislative branches of government:
Continue Reading Judge McMahon Rules Against Sirius in Copyright Class Action Regarding Songs Predating 1972 Copyright Act

In a motion Friday, the satellite radio company Siruis moved to dismiss a proposed class action (covered in this post) by members of the band The Turtles asserting New York common law copyright claims for songs recorded prior to the 1972 federal Copyright Act. The motion argues:
Continue Reading Sirius Moves to Dismiss Copyright Class Action Regarding Songs Predating 1972 Copyright Act