Empire State Fight Finished For Flo & Eddie


Sirius XMIn a major ruling regarding the airplay of pre-1972 recordings on Sirius XM, New York state’s highest appeals court on Dec. 20, 2016, handed down a 4-2 decision that found the satellite radio broadcaster is not liable for payment of royalties from songs released in prior years.

But, a team of plaintiffs led by Mark Volman and Howard Kaylan — founding members of 1960s rock act The Turtles who go by their stage names “Flo & Eddie” still held out hope that Federal courts could review the case and reach a different conclusion.

On Thursday (2/16), their hopes of a change in the Empire State were dashed by the U.S. Court of Appeals for the Second Circuit, which reached its conclusion on “a significant and unresolved issue of New York law”: Is there a right of public performance for creators of pre-1972 sound recordings under state law and, if so, what is the nature and scope of that right?

The Federal Appeals Court let the New York Court of Appeals answered this question. The court responded that N.Y. state common law does not recognize a right of public performance for creators of pre-1972 sound recordings.

As a result, a reversal of a district court’s denial of Sirius XM’s motion for summary judgement has occurred.

In plain English, it’s “case dismissed” for Flo & Eddie, and a win for not only Sirius XM but for broadcasters across the Empire State.

“This is an important decision for local radio stations in New York,” said David Donovan, President of the New York State Broadcasters Association. “This definitive ruling should put an end to the legal proceedings in New York.”

image001Donovan added that the “big winners” in this ruling are listeners to Oldies, Classic Hits, Classic Rock, Adult Standards and Classical stations across New York.

“The courts’ decisions recognized the fundamental relationship between local radio stations and the music industry,” Donovan said. “As the New York State Court of Appeals observed, ‘[R]ecord 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.’ This mutually beneficial relationship continues to this day.”

The U.S. Second Circuit Court of Appeals ruling affirms that there are no alternative grounds for finding Sirius XM liable — and ends Flo & Eddie’s attempt to obtain performance fees under New York law.

RBR + TVBR RELATED READ: Can Flo & Eddie Appeal N.Y. Ruling?