On Feb. 10, Judge Colleen McMahon of the Southern District of New York certified the following question for interlocutory appeal to the U.S. Court of Appeals for the Second Circuit:

Under New York law, do the holders of common-law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance of those sound recordings?

The question, squarely presented for the first time in Flo and Eddie v. Sirius XM Radio,1 is potentially momentous for the music industry. The Beatles, Elvis Presley, Bob Dylan, the Rolling Stones and countless other artists created recordings before 1972 that remain hugely popular but are protected only under state law, not the federal Copyright Act. If these recordings enjoy a right of public performance equivalent to the federal rights provided for post-1972 recordings, as Judge McMahon has held, then digital transmission services like Sirius XM and Pandora could find themselves having to pay royalties for transmitting these recordings going forward, and paying infringement damages to thousands of recording owners for past unlicensed performances.2 This column will describe the issues presented in the Flo and Eddie case, a fascinating and high-stakes dispute that could be filling up docket sheets in the courts for years to come.

Background

Flo and Eddie Inc. (F&E) is a corporation recently formed by two founding members of the 1960s pop group The Turtles, best known for its hit “Happy Together,” which displaced the Beatles “Penny Lane” as the Number 1 song on the U.S. pop charts for three weeks in 1967. F&E has acquired ownership of the common-law copyrights in the group's sound recordings, all of which were recorded before 1972. Like other holders of pre-1972 sound recording copyrights, F&E and its predecessors have never received any public performance royalties for these recordings, from any source.