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 U.S. District Judge Colleen McMahon in Manhattan rejected
Sirius' request to dismiss the lawsuit accusing the satellite
radio company of playing pre-1972 songs from the band the
Turtles, best known for the hit "Happy Together," without
permission or paying royalties.
She said that unless Sirius by Dec. 5 raises any factual issues
requiring a trial, she will rule outright for the plaintiff, Flo
& Eddie Inc, a company controlled by founding Turtles members
Howard Kaylan and Mark Volman, and begin to assess damages.
Sirius and its lawyers did not immediately respond to requests
for comment.
Harvey Geller, a lawyer for Flo & Eddie, said his client is
pleased. "From coast to coast, the owners of pre-1972 recordings
are finally getting what is owed to them," he said.
Though songs recorded before Feb. 15, 1972, are not covered by
federal copyright law, some recording artists and labels have
been seeking copyright protection under individual state laws.
Flo & Eddie sued Sirius in New York, California and Florida,
seeking class action status and more than $100 million of
damages for alleged infringements by New York-based Sirius.
In September, U.S. District Judge Philip Gutierrez ruled in the
California case that the band had a right "to possess and use
its sound recordings and prevent others from using them." The
court in Florida has yet to rule on Sirius' liability.
In the New York lawsuit, Sirius said state law didn't cover the
band's claims, and that its copies of Turtles recordings
constituted fair use.
McMahon, however, called it "common sense" that "Flo and Eddie
would suffer market harm when Sirius takes its property and
exploits it, unchanged and for a profit."
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She said Congress had authorized New York to regulate pre-1972
recordings, and that the state has long protected public performance
rights in works other than sound recordings.
"Sirius suggests no reason why New York - a state traditionally
protective of performers and performance rights - would treat sound
recordings differently," she wrote.
McMahon acknowledged that her decision and Gutierrez's could have
far-reaching consequences, such as prompting other lawsuits or
causing more states to change their copyright laws, but said "the
broader policy problems are not for me to consider."
Sirius has said it will appeal Gutierrez's decision. [ID:nL2N0RW3CF]
Flo & Eddie has also sued Internet radio company Pandora Media Inc.
The case is Flo & Eddie Inc v. Sirius XM Radio Inc et al, U.S.
District Court, Southern District of New York, No. 13-05784.
(Reporting by Jonathan Stempel in New York; Editing by Leslie Adler)
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