Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 70 N.E.3d 936

Background

Flo & Eddie (owned by former members of the Turtles) controls master recordings of ~100 songs fixed before Feb. 15, 1972 and sued Sirius XM for broadcasting those recordings without licenses or performance payments.
District Court denied Sirius’s summary-judgment motion, finding New York common law recognizes a public-performance right in pre‑1972 sound recordings; the Second Circuit certified the question to the New York Court of Appeals.
Federal copyright law historically excluded performance rights for sound recordings and only created a limited digital-performance right in 1995 (DPRA) for post‑1972 recordings.
New York common-law cases had long protected against piracy (unauthorized reproduction/distribution) but had not explicitly recognized a public‑performance right for sound recordings.
The Court held as a matter of New York common law that creators/owners of pre‑1972 sound recordings do not have a right of public performance; it declined to create such a right and left that policy choice to the legislature.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does NY common law recognize a right of public performance in pre‑1972 sound recordings?	Yes — owners have a common‑law performance right and should be compensated when services commercially broadcast recordings.	No — NY common law historically protects only reproduction/distribution; no recognized performance right; industry practice confirms absence.	No — New York common law does not recognize such a right.
If recognized, should the Court define its scope (e.g., which media/exemptions)?	Scope should cover commercial broadcasts (e.g., subscription services) and be broadly enforceable.	Defining scope is complex; recognition would disrupt settled expectations and require legislative balancing.	Court declined to define scope and refused to create the right; left to legislature.
Do NY common‑law copyright doctrines protect unauthorized reproduction/piracy of pre‑1972 recordings?	Yes — owners can enjoin copying and unauthorized distribution.	N/A (defendant conceded copying issues in part).	Yes — common law protects against unauthorized reproduction; prior decisions (Naxos, Metropolitan Opera) support anti‑piracy protection.
Are societal/industry expectations relevant to recognizing a new common‑law right?	Industry evolution and artist harm justify recognition despite past practice.	Longstanding industry practice and congressional treatment show no common‑law performance right; courts should not upend settled reliance.	Relevant — the Court emphasized settled expectations and legislative competence; declined to create the right.

Key Cases Cited

Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540 (N.Y. 2005) (New York common law protects pre‑1972 sound recordings against unauthorized reproduction)
Bonneville Int’l Corp. v. Peters, 347 F.3d 485 (3d Cir. 2003) (historical overview of recording industry practices and the absence of a performance right pre‑DPRA)
Arista Records, LLC v. Launch Media, Inc., 578 F.3d 148 (2d Cir. 2009) (discussion of federal reproduction rights for sound recordings)
RCA Mfg. Co. v. Whiteman, 114 F.2d 86 (2d Cir. 1940) (held common‑law protection focused on reproduction and suggested performance right did not survive publication)
Capitol Records v. Mercury Records Corp., 221 F.2d 657 (2d Cir. 1955) (rejected the broad Whiteman statement that sale of records extinguished all common‑law rights; limited to anti‑piracy protection)
Palmer v. De Witt, 47 N.Y. 532 (N.Y. 1872) (distinguishes right of first publication from statutory performance rights)
Pushman v. New York Graphic Soc’y, 287 N.Y. 302 (N.Y. 1942) (recognizes distinct common‑law interest in reproduction separate from ownership of physical object)
Goldstein v. California, 412 U.S. 546 (U.S. 1973) (states may protect pre‑1972 sound recordings where federal law does not preempt)
Dowling v. United States, 473 U.S. 207 (U.S. 1985) (copyright limits are carefully delimited; not all uses are covered)