Court Acknowledges Artist, Station 'Symbiotic Relationship'

In the opinion (read here), New York appeals court judge Leslie Stein writes common sense supports the explanation...that the record companies and artists had a symbiotic relationship with radio stations, and wanted them to play their records to encourage name recognition and corresponding album sales," she writes. "Nevertheless, those participants have co-existed for many years and, until now, were apparently 'happy together.' While changing technology may have rendered it more challenging for the record companies and performing artists to profit from the sale of recordings, these changes, alone, do not now warrant the precipitous creation of a common-law right that has not previously existed."

She continues, "Simply stated, New York's common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now."

According to The Hollywood Reporter, New York appellate judge Eugene Fahey writes a concurring opinion that notes advancing technologies and the difficulty in defining boundaries between performance and publication. He also believes that public performance rights aren't included under common law, although with a caveat: Public performance, he writes, "does not include the act of allowing members of the public to receive the 'on-demand' transmission of particular sound recordings specifically selected by those listeners." The judge thinks that "on-demand" services like Spotify or Apple Music publish recordings, potentially opening up a door for future litigation should those services attempt to play pre-72 recordings without negotiating rights.

Finally, New York appellate judge Jenny Rivera writes in dissent, "I reject a parochialism that justifies turning a blind eye to the exploitative practices of today's music industry made possible by technological advances and that, as a consequence, excludes from our common-law copyright in sound recordings a quintessential property interest in the use of these works, and limits a creator's opportunity to derive financial benefit from their performance."

She asserts that the right of public performance "addresses the imbalance of financial incentives and revenue streams" and believes such right exists under the state's law in the interest of creators and the public interest.