No Common Law Right of Public Performance for Creators of Pre-1972 Sound Recordings

A decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc has come down.

The plaintiff, which claim to own the rights to the recordings of "The Turtles," a well-known band with a string of hits in the 1960s, sued Sirius XM Radio, Inc., a radio and internet-radio broadcaster, claiming that Sirius infringed on the plaintiff's copyright in The Turtle's recordings.  On a motion for summary judgment, Sirius claimed that there was no public performance rights in pre-1972 recordings under New York law and that if such a right existed, it violated the Dormant Commerce Clause.

The District Court held that there was such a right and that it did not violate the Dormant Commerce Clause.  Sirius then moved for reconsideration or to certify its order for interlocutory appeal.  The Court denied the motion for reconsideration, but certified both the summary judgment and reconsideration orders for immediate appeal.

On appeal, the Second Circuit decided that there was an unclear issue of state law that should be decided by the New York State Court of Appeals -- whether there is a right of public performance for creators of pre-1972 sound recordings.

On December 20, 2016, the Court of Appeals held that New York common law does not recognize such a right.

Based on this finding, the Second Circuit reversed the District Court's order denying summary judgment and remanded the case to the District Court with instruction to grant Sirius's motion for summary judgment and to dismiss the case with prejudice.

The New York State Court of Appeal's decision can be found here.  The Second Circuit's decision can be found here.

FMLA -- Obligation on Employer to Ask for Information to Determine whether Employee is Entitled to Relief

In Coutard v. Municipal Credit Union, the District Court dismissed a claim brought by an employee under the Family Medical Leave Act in which the employee claimed that the employer denied him leave to care for his grandfather.  The District Court held that the failure of the employee that he was in a loco parentis relationship with his grandfather doomed his claim.  The Second Circuit reversed, holding that the employer had an obligation to specify any additional information that it needed in order to determine whether plaintiff was entitled to such leave and remanded the case to the District Court for further proceedings.  The plaintiff had asked the Court to grant him partial summary judgment, but the Second Circuit declined to do so.  Even though it held that his claim should be dismissed on failure to give proper notice grounds did not establish as a matter of law that he was entitled to the relief he sought.

A copy of the decision can be found here.