Former recording artists Flo & Eddie’s three-and-a-half-year battle against Sirius XM Radio, Inc., for recognition of a public performance right under New York law for pre-1972 sound recordings has come to an end. On Feb. 16, 2017, the Second Circuit Court of Appeal issued an order directing the district court to grant Sirius XM Radio’s motion for summary judgment on the ground that no such state law right of public performance exists, and to dismiss the case with prejudice. The Second Circuit based its dismissal on the response it received following certification of this state law issue for determination by the state’s highest court. On Dec. 20, 2016, the New York Court of Appeals ruled that New York state copyright protection had never extended as far as recognizing a public performance right for sound recording copyright owners. 2016 N.Y. Slip. Op. 08480, 2016 WL 7349183.
Given the New York court’s determination, it was unsurprising that the Second Circuit dismissed Flo & Eddie’s state copyright claim with prejudice. However, the completeness of Sirius XM Radio’s victory may have surprised plaintiffs’ counsel, as the Second Circuit dismissed all of Flo & Eddie’s state law claims. Indeed, the court’s across-the-board dismissal with prejudice of all of Flo & Eddie’s state law claims represented the one area where the two courts disagreed. Continue Reading