2nd Circuit Sends Flo & Eddie's Sirius XM Suit to New York Court

The 2nd U.S. Circuit Court of Appeals paused its review of Flo & Eddie's lawsuit against Sirius XM Wednesday, sending the case to the New York Court of Appeals so that court can definitively rule on whether New York law recognizes a public performance right for pre-1972 sound recordings and the scope of the state's law. The status of pre-1972 sound recordings under New York law constitutes a “significant and unresolved issue” of state law that “is determinative” in the 2nd Circuit's eventual decision on Sirius XM's appeal of the case, said Judge Guido Calabresi in the three-judge 2nd Circuit panel's ruling. Sirius XM was appealing a 2014 U.S. District Court in New York decision in favor of Flo & Eddie's lawsuit against the company. Flo & Eddie, who own the copyright to “Happy Together” and the rest of The Turtles' music library, have sought back performance royalties on The Turtles' pre-1972 recordings. NAB, Pandora and other groups supporting Sirius XM have questioned whether New York common law includes a performance right for pre-1972 recordings, something that doesn't exist in federal law (see 1508060052). New York's “interest in compensating copyright holders may perhaps outweigh the cost of making such a change,” the 2nd Circuit said. “Whatever the merits of such a determination might be as a value judgment, however, it is a value judgment, which is for New York to make.”