Can Flo & Eddie Appeal N.Y. Ruling?


Yesterday’s 4-2 decision by the New York State Court of Appeals that found Sirius XM not liable for royalty payments for its airing of pre-1972 songs on its satellite radio stations may have some thinking about what Flo & Eddie — the founders of 1960s-era rock act The Turtles and the protagonists in a long-running battle to collect on airplay — may do next.

With a New York outcome vastly different than what transpired in California ruling just last month, when a payout settlement was reached just a day before a trial was set, some may think Federal court is the next logical venue for the plaintiffs.

Don’t count on it, says one legal expert.

Helene M. Freeman
Helene M. Freeman

In an interview with RBR + TVBR, Phillips Nizer partner Helene M. Freeman, who served as defense counsel to the surviving members of rock band Led Zeppelin in Michael Skidmore v. Led Zeppelin, said, “There is no likelihood of Supreme Court review. This is a matter of state law, and New York is the highest authority on state common law.”

Thus, there are no further paths for the artists, as The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) clearly states who has jurisdiction over the pre-1972 works.

Freeman played a starring role in the Led Zeppelin case, a high-profile copyright infringement battle that involved the claim that the legendary song “Stairway to Heaven” copied an instrumental composition. A jury verdict said no, that the song was not a copy of another work.

Freeman is also known for her role in Trans Continental Records Inc. et al. v. Zomba Recording Corporation et al., in which she successfully defended the musical group *NSYNC in a Lanham Act action brought by BMG Music and the late Louis Pearlman to enjoin the group from performing under the name *NSYNC and to compel the group to deliver master recordings to BMG.

As a result, *NSYNC was permitted to leave the RCA Record label and release their album No Strings Attached through Jive Records.

“This will probably spell the death knell for efforts to secure performance rights for pre-1972 sound recordings in the courts under existing law,” Freeman says.

But, Flo and Eddie and other pre-1972 acts still have hope … on Capitol Hill.

“The battle will now shift to Congress, where an effort to amend the Copyright Law is on-going,” Freeman says.

The recording artists could also find themselves back in Albany, one day.

“Attention should also shift to state legislatures, which can pass their own legislation to protect the rights of owners of pre-1972 that are not protected by federal law,” Freeman adds.

Meanwhile, David Donovan, President of the New York State Broadcasters Association, applauded the Court of Appeals ruling in favor of Sirius XM. NYSBA filed an amicus curae brief on behalf of the satcaster.

“This opinion will guide a final decision in the case,” he said. “We are delighted … The majority expressly recognized, ‘[T]hat the record companies and artists had a symbiotic relationship with radio stations and wanted them to play their records to encourage name recognition and corresponding album sales.’”

Donovan was also pleased that the court recognized NYSBA concerns that both broadcasters and the public would be “deprived” of pre-1972 music if it created such a new right.

“While the case directly involved Sirius XM, it was clear that the decision could affect broadcasters,” Donovan said. “This is an important decision that will have national implications.”

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Adam R Jacobson is a veteran radio industry journalist and advertising industry analyst with general, multicultural and Hispanic market expertise. From 1996 to 2006 he served as an editor at Radio & Records.