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National Restaurant Association - Music Licensing

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Music Licensing

Case: Flo & Eddie v. SiriusXM

Status: Pending, U.S. Court of Appeals for the Second Circuit

Issue: We oppose attempts to impose a currently non-existent common-law copyright liability under state law on restaurants and other music users that play certain music recorded prior to 1972.

  • Singers Flo & Eddie, of the 1960s band The Turtles, have filed lawsuits against SiriusXM in California, New York and Florida. They argue that they have common-law rights to collect royalties when SiriusXM plays "sound recordings" made prior to 1972, in the absence of federal laws governing such recordings.  The same requirement would apply to restaurants that broadcast such recordings.
  • We joined the New York State Restaurant Association, Pandora and iHeartRadio in filing an amicus brief with the New York Court of Appeals in September 2016 arguing that state law does not provide a common-law right to collect additional royalties. Thousands of businesses would be exposed to potentially confiscatory licensing fees on a state-by-state basis if the Flo & Eddie’s case succeeds, we said.
  • In December 2016, a four-judge majority of the New York Court of Appeals agreed, concluding that New York common law does not apply to pre-1972 recordings, and there is no New York-specific requirement for restaurants to pay additional fees to play these recordings.
  • The New York court’s conclusion now goes to the U.S. Court of Appeals for the Second Circuit, which will issue a final ruling. We anticipate this will be in our favor since the New York Court of Appeals ruling was central to the litigation. The Second Circuit’s ultimate decision should have a positive impact for cases in other federal circuits as well.


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