New York: No Right to Performance Fee Here

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And, as a result, the New York State Broadcasters Association has filed an amicus brief with the NY State Court of Appeals in the Flo and Eddie vs. Sirius XM case. NYSBA President David Donovan says, “There is no right to a performance fee for recorded music under New York State Law.”

NYSBA’s position was summed up in the brief as follows: “New York has never recognized a public performance right in sound recordings, and such a sweeping alteration of the law is unsupported by prior case law, legislative history at the federal level, and the history of the recording and broadcasting industries in New York State. The creation of a new, expansive performance right threatens to cast aside almost 100 years of accepted practices in the music broadcasting industry, while simultaneously circumnavigating the legislature and throwing copyright licensing into total disarray. NYSBA’s members would be directly impacted by the ensuing chaos.”

A federal district court ruled previously that New York State Law recognized a right to a performance fee for music recorded prior to 1972. The case was appealed to the U.S. Court of Appeals for the Second Circuit. The Second Circuit referred the case to the New York State Court of Appeals on the question of whether New York State Law recognizes such a right.

A copy of NYSBA’s 51-page amicus brief may be found HERE.

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