Federal 2nd Circuit Certifies Pre-72 Question To New York's Highest Court in Flo & Eddie Case

Flo & Eddie v. SiriusXM Radio, 15-1164cv (2d Cir. Apr. 13, 2016).

In the "Turtles" case against Sirius for common law copyright infringement of pre-1972 sound recordings under New York common-law, the Second Circuit certified the question to New York's highest court, the Court of Appeals: "This case presents a significant and unresolved issue of New York copyright law: Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right? Because this question is important, its answer is unclear, and its resolution controls the present appeal, we reserve decision and certify this question to the New York Court of Appeals."

The lower court had denied Sirius' motion for summary judgment, and the Second Circuit reviewed the matter de novo.  The Circuit stated "the issue before us is whether New York common law affords copyright holders the right to control the performance of sound recordings as part of their copyright ownership."  However, New York's highest court has not ruled on the issue in any prior case, and without such guidance, the Circuit was "in doubt" whether New York provides such rights under common law.  Thus, the Court found that certification to the New York Court of Appeals was appropriate.  Accordingly, the Court reserved decision and certified the following question for decision by the New York Court of Appeals:

"Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?"