)
CTQ-2016-00001
C!lmni nf ~!?His
of the
Jitafe nf ~mt lnrlt
FLO & EDDIE, INC., a California Corporation,
individually and on behalf of others similarly situated,
Plaintiff-Respondent,
- against-
SIRIUS XM RADIO, INC., a Delaware Corporation,
Defendant-Appellant,
DOES, 1 THROUGH 10,
Defendants.
ON APPEAL FROM THE QUESTION CERTIFIED BY THE U.S. COURT OF
APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 15-1164-CV
BRIEF OF AMICUS CURIAE
RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.
George M. Borkowski
(pro hac vice pending)
RECORDING INDUSTRY
ASSOCIATION OF AMERICA, INC.
1025 F Street NW, Tenth Floor
Washington, DC 20004
Telephone: 202-775-0101
Fax: 202-775-7523
Dated: August 29, 2016
Kenneth L. Doroshow (No. 2470805)
Devi M. Rao (pro hac vice pending)
JENNER & BLOCK LLP
1099 New York Avenue NW
Washington, DC 20001
Telephone: 202-639-6000
Fax: 202-639-6066
Counsel for Amicus Curiae Recording
Industry Association of America, Inc.
RULE 500.l(f) CORPORATE DISCLOSURE STATEMENT
Amicus curiae the Recording Industry Association of America, Inc. (RIAA)
hereby states that it is a nonprofit corporation that does not have any parent
corporations, subsidiaries, or affiliates. RIAA is not owned in any part by a
publicly held corporation.
Dated: August 29, 2016
1
/ ? _________
By:~/----
Kenneth L. Doroshow
Counsel for Amicus Curiae
Recording Industry Association of
America, Inc.
)
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... i
TABLE OF AUTHORITIES ................................................................................... iii
INTEREST OF AMICUS CURIAE ......................................................................... 1
INTRODUCTION ............................................................................................ ; ........ 3
ARGUMENT ............................................................................................................ 5
I. NEW YORK HAS A COMPELLING INTEREST IN PROTECTING
ITS VIBRANT AND ECONOMICALLY IMPORTANT MUSIC
INDUSTRY .................................................................................................... 5
II. DIGITAL STREAMING OF SOUND RECORDINGS IS THE
FUTUREOFTHEMUSICINDUSTRY ...................................................... 16
III. RECOGNITION OF A PUBLIC PERFORMANCE RIGHT IN PRE-
1972 SOUND RECORDINGS IS ESSENTIAL TO PRESERVING
THE ECONOMIC VIABILITY OF AN ENTIRE ERA OF
IMPORTANT CREATIVE WORKS ........................................................... 18
A. Pre-1972 Sound Recordings Have Significant Economic Value
For Their Owners, Recording Artists, And Their Families ............... 18
B. Pre-1972 Sound Recordings Continue To Maintain Great
Cultural and Historical Significance .................................................. 22
CONCLUSION ....................................................................................................... 25
CERTIFICATE OF COMPLIANCE ...................................................................... 26
11
TABLE OF AUTHORITIES
CASES
Capitol Records, Inc. v. Naxos of America, Inc., 4 N.Y.3d 540 (2005) ............. 3, 16
Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 62 F. Supp. 3d 325
(S.D.N.Y. 2014) ·······································································'.················· 3, 4, 15
STATUTES
17 u.s.c. § 106(6) .................................................................................................. 16
17 U.S.C. § 114 ....................................................................................................... 16
OTHER AUTHORITIES
The 100 Best Debut Albums of All Time, Rolling Stone,
http://www.rollingstone.com/music/lists/the-1 OO-greatest-debut-
albums-of-all-time-20130322/the-velvet-underground-and-nico-
19691231 (last visited Aug. 25, 2016) ............................................................... 12
100 Greatest Artists, Rolling Stone,
http://www.rollingstone.com/musi c/lists/ 1 OO-greatest-artists-of-all-
time-19691231/pub lic-enemy-20110420 (last visited Aug. 25,
2016) ·················································································································· 24
500 Greatest Songs of All Time, Rolling Stone,
http://www.rollingstone.com/music/lists/the-500-greatest-songs-
of-all-time-20110407/bob-dylan-like-a-rolling-stone-20110516
(last visited Aug. 25, 2016) ................................................................................ 11
Copyright Law of the United States of America and Related Laws
Contained in Title 17 of the United States Code,
http://copyright.gov/titlel 7/92chap8.html (last visited Aug. 25,
2016) .................................................................................................................. 16
Keith Caulfield, "Guardians of the Galaxy" Soundtrack Hits No. 1
On Billboard 200, Billboard.com, Aug. 13, 2014,
http://www.billboard.com/articles/columns/chart-
beat/6214496/guardians-of-the-galaxy-soundtrack-no-1-billboard-
200 ................................................................................................................. 20-21
111
~)
Lawrence Downes, This Land Is His Land: Roaming Through Woody
Guthrie's New York, N.Y. Times (Sept. 18, 2014),
http://www.nytimes.com/2014/09/19/arts/music/roaming-through-
woody-guthries-new-york.html? _r=O ................................................................ 10
Dream Songs: The Music of the March on Washington, New Yorker
(Aug. 28, 2013), http://www.newyorker.com/culture/culture-
desk/dream-songs-the-music-of-the-march-on-washington .............................. 23
Joshua P. Friedlander, News and Notes on 2014 RIAA Music Industry
Shipment and Revenue Statistics, http://riaa.com/media/
DlF4E3E8-D3EO-FCEE-BB55-FD8B35BC8785.pdf ................................ 16, 17
Lois Gray & Maria Figueroa, Empire State's Cultural Capital at
Risk? Assessing Challenges to the Woriforce and Educational
Infrastructure of Arts and Entertainment in New York, Cornell
Univ. ILR Sch. (2009) .......................................................................................... 6
http://www.allmusic.com/album/live-at-camegie-hall-l 93 8-complete-
mw000067l550 .................................................................................................... 8
http://www.boxofficemojo.com/movies/?id=marvel20 l 4a.htm (last
visited Aug. 25, 2016) ........................................................................................ 21
https://www.loc.gov/programs/national-film-preservation-board/film-
registry/complete-national-film-registry-listing/index-of-essays ........................ 7
http://www.pjstar.com/article/20141031/Entertainment/l 4 l 039841 ....................... 8
Andrew Grant Jackson, 1965: The Most Revolutionary Year in Music
(2015) ................................................................................................................. 24
Victor Luckerson, Spotify and YouTube Are Just Killing Digital
Music Sales, Time (Jan. 3, 2014),
http://business.time.com/2014/01/03/spotify-and-youtube-are-just-
killing-digital-music-sales/ ................................................................................ 17
Jillian Mapes, 20 Old Songs Wes Anderson Gave New Life: A Playlist,
Flavorwire.com (Mar. 7, 2014, 1 :00 PM),
http://flavorwire.com/443888/20-old-songs-wes-anderson-gave-
new-life-a-playlist .............................................................................................. 20
IV
Greil Marcus, Like a Rolling Stone: Bob Dylan at the Crossroads
(2005) ................................................................................................................. 10
Scott Mervis, Rolling Stones Staple "Satisfaction" Celebrates 50
Years, Pittsburgh Post Gazette (June 18, 2015), http://www.post-
gazette.com/ae/music/2015/06/18/The-Rolling-Stones-song-
Satisfaction-at-50/stories/201506180015 .......................................................... 23
Music First, Economic Impact of the Music Community in the State
ofNew York (on file with Amicus RIAA) ...................................................... 1, 5
The Official Ed Sullivan Site, All Artists,
http://www.edsullivan.com/all-artists/ (last visited Aug. 25, 2016) ............. 23-24
Amy Plitt, 25 Best "Mad Men" Musical Moments, Rolling Stone
(May 15, 2015), http://www.rollingstone.com/tv/lists/25-best-mad-
men-musical-moments-20150515 ...................................................................... 19
Press Release, RIAA, New York Is Music Coalition Applauds
Passage of Empire State Music Production Tax Credit, Urges
Governor Cuomo to Sign Bill Into Law (June 16, 2016),
https://www .riaa.com/new-york-is-music-coalition-applauds-
passage-of-empire-state-music-production-tax-credit-urges-
govemor-cuomo-to-sign-bill-into-law/ ......................................................... 1-2, 6
Jody Rosen, The Encyclopedia of New York Pop Music,
http://www.vulture.com/2014/03/encyclopedia-of-new-york-pop-
music/slideshow/15/ ............................................................................................. 8
Jody Rosen, The Encyclopedia of New York Pop Music,
http://www.vulture.com/2014/03/encyclopedia-of-new-york-pop-
music/slideshow/3 l/ ...................................................................................... l l-12
Jody Rosen, The Town That Put the Pop in Music: A Look Back at
100 Years of New York Sounds, Vulture (Mar. 23, 2014),
http://www.vulture.com/2014/03/100-years-of-new-york-
music.html ............................................................................................................ 7
Neil Shah, The Summer That Streaming Took Over, Wall St. J. (Aug.
25, 2016), http://www.wsj.com/articles/the-summer-that-
streaming-took-over-1472151516 ...................................................................... 17
v
)
Wikipedia, Complete List of Downloadable Songs for the Rock Band
Series, https://en.wikipedia.org/wiki/Complete_list_of_
downloadable_songs_for_the_Rock_Band_series (last visited Aug.
25, 2016) ............................................................................................................ 20
VI
)
INTEREST OF AMICUS CURIAE
Amicus curiae Recording Industry Association of America, Inc. ("RIAA") is
the trade organization that supports and promotes the creative and financial vitality
of the major recorded music companies. Its members are the music labels that
comprise the most vibrant record industry in the world. RIAA members create,
manufacture, and/or distribute 85% of all legitimate recorded music produced and
sold in the United States. RIAA members depend on copyrights and state laws that
safeguard property rights to protect the valuable performances embodied in sound
recordings in which they have invested and which they have created in
collaboration with recording artists and other creators.
New York is a leading center for the arts and entertainment industries in the
United States and globally. Indeed, New Yorkers who work in the music industry
as local musicians, performers, managers, and at music labels, account for nearly
10% of the natfon's music professionals, and over 3,600 local music businesses
make New York their home. See Music First, Economic Impact of the Music
Community in the State of New York (on file with Amicus RIAA). Critically
important to this case, New York is the top sound recording center in the country,
and numerous music labels are incorporated or do business in New York. All told,
more than 100,000 New Yorkers work in the music industry. See Press Release,
RIAA, New York Is Music Coalition Applauds Passage of Empire State Music
1
Production Tax Credit, Urges Governor Cuomo to Sign Bill Into Law, (June 16,
2016), https ://www .riaa.com/new-york-is-music-coalition-applauds-passage-of-
empire-state-music-production-tax-credit-urges-governor-cuomo-to-sign-bill-into-
law/. New York is also home to many recording artists, including those who
created iconic sound recordings before February 15, 1972 (pre-1972 sound
recordings) as well as artists who bring new and exciting music to the world today.
Amicus and its members therefore have a significant interest in the important
question this case presents concerning the protection of performances embodied in
pre-1972 sound recordings under New York law.
RIAA submits this amicus curiae brief, accompanied by a motion for leave
to file the same, pursuant to Rule of Practice 500.23(a)(l).
2
INTRODUCTION
New York law unequivocally protects the rights of owners of pre-1972
sound recordings. As this Court has recognized, "musical recordings ... created
before February 15, 1972, are ... entitled to copyright protection under New York
common law." See Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540, 560
(2005). The question before the district court was whether, despite having
bestowed state law protection upon pre-1972 recordings, New York common law
silently, and without any court opinion, deprived owners of those recordings of the
exclusive right of public performance. The district court correctly observed that
"[n]o New York case recognizing a common law copyright in sound recordings
has so much as suggested that right was in some way circumscribed, or that the
bundle of rights appurtenant to that copyright was less than the bundle of rights
accorded to plays and musical compositions," to which New York courts have long
afforded a public performance right. Flo & Eddie, Inc. v. Sirius XM Radio, Inc.,
62 F. Supp. 3d 325, 341 (S.D.N.Y. 2014) (A-1685). The district court also
understood the important role that New York common law plays in protecting
intangible property rights, recognizing that "the common law ... exists to protect
the property rights of the citizenry" and New York is "a state traditionally
protective of performers and performance rights." Id. at 344 (A-1690). New
York's protective common law for performers and performance rights reflects this
3
_)
State's compelling interest in safeguarding the economic vitality of its music and
sound recording industry.
In addition to conducting a thorough analysis of New York common law, the
district court also considered and weighed the policy arguments advanced by Sirius
XM. See id. at 342-44 (A-1687-90). Sirius XM's argument that, because pre-1972
works (by definition) already exist, the court should not recognize public
performance rights for these works since doing so cannot create incentives for the.
creation of new pre-1972 recordings, is misguided. See id. at 342-43 (A-1687).
The district court correctly concluded that this fact is irrelevant, analogizing to
federal copyright, where Congress has rejected this argument "time and time
again" when it several times extended the term of copyright protections. Id. at 343
(A-1688).
The district court ultimately concluded that this Court "would recognize the
exclusive right to public performance of a sound recording as one of the rights
appurtenant to common law copyright in such a recording." Id. at 339 (A-1681).
For the reasons set out in the district court opinion and in the pages that follow
here, amicus curiae the RIAA respectfully urges this Court to reach the same
conclusion. Indeed, in holding that New York common law protects the public
performance right in pre-1972 sound recordings, this Court will prevent an
injustice to the owners of those recordings who have invested, and regularly
4
continue to invest, millions of dollars to develop, promote, and protect these
recordings in order to introduce them to new generations of music fans. A ruling
in favor of common law protection in this case will also ensure that recording
artists and their families, who depend on compensation from the exploitation of
sound recordings for their livelihoods (or simply to make ends meet) will be paid
when recordings embodying their performances are exploited by companies such
as Sirius XM. For these reasons, as elaborated in this brief, the certified question
of whether there is a right of public performance for creators of sound recordings
under New York law should be answered in the affirmative.
ARGUMENT
I. NEW YORK HAS A COMPELLING INTEREST IN PROTECTING
ITS VIBRANT AND ECONOMICALLY IMPORTANT MUSIC
INDUSTRY.
The vitality and economic importance of New York's music industry cannot
be overstated. New York is a leading center for the arts and entertainment
industries in the United States and globally. Indeed, New Yorkers who work in the
music industry as local musicians, performers, managers, and at music labels,
account for nearly 10% of the nation's music professionals. Over 3,600 local
music businesses make New York their home. See Music First, Economic Impact
of the Music Community in the State ofNew York (onfile with Amicus RIAA).
5
J
Critically important to this case, New York is the top sound recording center
in the country. Lois Gray & Maria Figueroa, Empire State's Cultural Capital at
Risk? Assessing Challenges to the Woriforce and Educational Infrastructure of
Arts and Entertainment in New York, Cornell Univ. ILR Sch. 6 (2009). All told,
more than 100,000 New Yorkers work in the music industry. See Press Release,
RIAA, New York Is Music Coalition Applauds Passage of Empire State Music
Production Tax Credit, Urges Governor Cuomo to Sign Bill Into Law (June 16,
2016), https://www .riaa.com/new-york-is-music-coalition-applauds-passage-of-
empire-state-music-production-tax-credit-urges-governor-cuomo~to-sign-bill-into
law/. Numerous music labels are either incorporated in New York or have
substantial offices here across a wide range of musical genres, including ABKCO
Music & Records, Inc., Atlantic Records, Bad Boy Entertainment, Blue Note
Records, Columbia Records, Def Jam, Matador Records, Razor & Tie, RCA,
Republic Records, Roe Nation, Sony Music Entertainment, and Warner Bros.
Records, among others.
In many ways, the history of New York's music industry is the history of
some of the world's most important pre-1972 artists and sound recordings. New
York's music scene at the close of the nineteenth century centered on New York
City's West 28th Street between Broadway and Sixth A venue, a block known as
"Tin Pan Alley" that was lined with song-publishing shops, putting out the popular
6
music of the day: melodramatic ballads, comic novelty songs, and ragtime. Jody
Rosen, The Town That Put the Pop in Music: A Look Back at 100 Years of New
York Sounds, Vulture (Mar. 23, 2014), http://www.vulture.com/2014/03/100-years-
of-new-york-music.html (hereinafter Rosen, New York Sounds). Growing out of
Tin Pan Alley, early American popular music was born and flourished in New
York City. Between 1911 and 1928, crooner Al Jolson performed nine sell-out
shows at New York City's Winter Garden and had more than 80 hit records .
. Irving Berlin, who would later be dubbed the "Ragtime King," had his first major
hit with 1911 's "Alexander's Ragtime Band." George and Ira Gershwin first got
their start on Tin Pan Alley, and George Gershwin's "Rhapsody in Blue" (1924)
has since become synonymous with New York City thanks to Woody Allen's
decision to feature it in the opening scene of his film "Manhattan."1
American musical theater also found its home in New York-on Broadway
-with musicals written and composed by the Gershwins, Irving Berlin, Cole
Porter, and Rodgers and Hart (and later Rodgers and Hammerstein). For much of
the early twentieth century, American popular music was dominated by recordings
of musical theater standards like "Tea for Two" and the Gershwins' "Someone to
Watch Over Me," as well as popular songs by these same composers. Indeed,
1 In 2001, the United States Library of Congress deemed "Manhattan" "culturally
significant" and selected it for preservation in the National Film Registry. See
https://www.loc.gov/programs/national-film-preservation-board/film-registry/
comp 1 ete-nati onal-film-registry-listing/index-of-essays.
7
)
Irving Berlin's "White Christmas," recorded in 1942 by Bing Crosby, has sold
over 100 million copies and is the best-selling record in history. See
http://www.pjstar.com/article/20141031/Entertainment/141039841.
Jazz, too, flourished in New York. From 1927 to 1931, Duke Ellington took
up residency at Harlem's Cotton Club, "captur[ing] the beauty and ferment of th[ e]
: Roaring Twenties." Jody Rosen, The Encyclopedia of New York Pop Music,
)
http://www.vulture.com/2014/03/encyclopedia-of-new-york-pop-
music/slideshow/15/ (hereinafter Rosen, Encylopedia). These shows, captured in
pre-1972 sound recordings treasured by jazz aficionados and historians, were
broadcast weekly across the country on the radio. In the 1930s, Benny Goodman,
the "King of Swing," led one of the most popular music groups in the country. His
concert at Carnegie Hall in January 1938 was "jazz's 'coming out' party to the
world of 'respectable' music, held right in that throne room of musical
respectability." http://www.allmusic.com/album/live-at-camegie-hall-1938-
complete-mw0000671550. In the early 1930s, Billie Holiday began singing in
nightclubs in her native Harlem, where she was discovered by producer and fellow
New Yorker John Hammond. "Lady Day" would go on to record such pre-1972
hits as "They Can't Take that Away from Me" (1937, with Count Basie), the
haunting "Strange Fruit" (1939), "Embraceable You," her 1944 recording of which
was inducted into the Grammy Hall of Fame in 2005, and "God Bless the Child,"
8
)
which sold over a million records and remains a standard today. In 1941 on West
118th Street in Harlem, pianist Thelonius Monk wrote and first played
"Epistrophy," the first of his major works, which would be followed by other hit
recordings such as "Round Midnight" (1944) and "Blue Monk" (1958). Monk's
famed "Blue Note Sessions" were recorded by New York-based Blue Note
Records from 194 7 to 1952. And in 1944, Miles Davis moved to New York,
enrolled in Juilliard, and subsequently dropped out to play alongside Charlie
Parker at Harlem-and later downtown-clubs.
New York City has long welcomed immigrants from around the world, and
i in the 1930s through 1960s, resident Cuban, Puerto Rican, and later Dominican
musicians created new types of music that fused traditional Latin rhythms with
popular American sounds, creating genres like rumba, mamba, salsa, meringue,
cha cha cha, boogaloo, and Latin jazz, among others. The results of cultural
synthesis, these styles were rooted in the Caribbean but were honed and
popularized in New York City by natives or adopted sons such as Willie Colon
(salsa), Tito Puente (mambo/Latin jazz), and Machito (Latin jazz).
New York City nurtured yet another iconic branch of American music: folk.
In 1940, Woody Guthrie moved to New York and joined a folk music community
that included the folk historian and scholar Alan Lomax and musicians Josh White,
Burl Ives, Lead Belly (Ruddie Ledbetter), and a then-unknown Pete Seeger. It was
9
during this period that Guthrie wrote and recorded "Vigilante Man" (1940), "The
Sinking of Reuben James" (1942), and "This Land is Your Land" (1944).
Lawrence Downes, This Land Is His Land: Roaming Through Woody Guthrie's
New York, N.Y. Times (Sept. 18, 2014), http://www.nytimes.com/2014/09/19/
arts/music/roaming-through-woody-guthries-new-york.html?_r=O.
In the 1950s and 1960s, the Brill Building in midtown Manhattan was the
heart of New York City's music district. This Times Square-adjacent office
building became the center of the pop music industry in the postwar period, with
songwriters, producers, international publishing companies, music agencies, and
recording labels all under its roof. From this hotbed of creativity emerged the
"Brill Building Sound," which included pre-1972 hits like The Drifters' "Save the
Last Dance for Me" (1956), Neil Sedaka's "Breaking Up Is Hard to Do" (1962),
Little Eva's "The Loco-Motion" (1962), and The Shirelles' "Will You Love Me
Tomorrow" (1960) and spawned the careers of songwriters and producers who
worked in this building and later became legendary recording artists in their own
right, including Sedaka, Carole King, and Neil Diamond.
And then came Bob Dylan who, "more than anyone[,] ended the[] careers"
of the Brill Building songwriters. Greil Marcus, Like a Rolling Stone: Bob Dylan
at the Crossroads 137 n.* (2005). In 1961, Dylan dropped out of college in his
native Minnesota and moved to New York City to perform and meet his musical
10
)
idol, Woody Guthrie. Dylan played clubs around Greenwich Village, and
eventually received the attention of John Hammond, the same producer who had
helped shepherd Billie Holiday's career, and Hammond signed Dylan to Columbia
Records in October of 1961. Dylan would go on to record canonical pre-1972
classics including "Blowin' in the Wind" (1962-63), "The Times They Are a-
Changin"' (1963), "It Ain't Me Babe" (1964), "Subterranean Homesick Blues"
(1965), "Mr. Tambourine Man" (1965), and "Like a Rolling Stone" (1965), which
Rolling Stone listed at number one on its list of Greatest Songs of All Time. 500
Greatest Songs of All Time, Rolling Stone,
http://www.rollingstone.com/music/lists/the-500-greatest-songs-of-all-time-
20110407/bob-dylan-like-a-rolling-stone-20110516 (last visited Aug. 25, 2016).
New York raised and fostered another folk rock success: the duo of Simon &
Garfunkel. The pair met in 1953 as children in Queens and signed with Columbia
Records in 1963. Their 1965 "The Sound of Silence," their first big hit, reached
number one on the Billboard Hot 100, and their music was famously featured in
the critically-acclaimed and award-winning 1967 film "The Graduate." Art
Garfunkel would later recall how their New York roots gave them "a leg up" in the
industry: "both of us already had one leg on the F train, going into Manhattan,
going to the Brill Building, even though we were out in Queens. . . . [Y]ou could
make the leap from a middle-class Jewish kid in Queens to the Big Apple." Rosen,
11
)
Encyclopedia, http://www.vulture.com/2014/03/encyclopedia-of-new-york-pop-
music/slideshow/3 l/.
New York City produced more avante-garde rock music as well, including
The Velvet Underground (featuring Lou Reed and John Cale), which was briefly
managed by pop artist icon Andy Warhol and served as the house band at his
Factory. Despite achieving little commercial success during its existence between
1964 and 1973, The Velvet Underground is now recognized as among the most
influential acts of its era and their 1967 debut album The Velvet Underground &
Nico was dubbed by Rolling Stone as "the most prophetic rock album ever made."
The 100 Best Debut Albums of All Time, Rolling Stone,
http://www.rollingstone.com/music/lists/the-1 OO-greatest-debut-albums-of-all-
time-20130322/the-velvet-underground-and-nico-19691231 (last visited Aug. 25,
2016).
It was not just New York performers that have had a monumental impact on
music history; New York music venues provided a stage from which performers
from around the world have made their mark on music history. New Yorker Ed
Sullivan broadcast his eponymous CBS variety show from a New York soundstage
to homes across America. The Beatles' first appearance on the show in February
1964-which drew 73 million viewers, a record at the time-is widely considered
a milestone in American pop culture and signaled the beginning of the British
12
)
Invasion. Soon after, Sullivan would produce a documentary of The Beatles' 1965
concert at Shea Stadium in New York City before a crowd of over 55,000, the
largest concert up to that time. The Rolling Stones appeared on Sullivan's show at
least six times through the 1960s. These appearances showcased many of the
band's best-known hits including "(I Can't Get No) Satisfaction," "Gimme
Shelter," "Paint It, Black," "Let's Spend the Night (Some Time) Together," "Time
Is On My Side," and "Honky Tonk Women." In addition, Carnegie Hall, perhaps
the world's most prestigious music venue, has hosted both classical and popular
music since its construction in 1891, hosting such pre-1972 music luminaries as
Duke Ellington, Billie Holiday, Bill Haley and the Comets (the Hall's first rock
show, in 1955), Nina Simone, and The Rolling Stones. The landmark Apollo
Theater, in Harlem, has been throughout the years a showcase for African
American musical talent, including jazz greats like Dizzy Gillespie and Count
Basie, gospel acts such as the Staple Singers, and soul and R&B singers like Sam
Cooke, Ray Charles, Otis Redding, and Aretha Franklin. The Apollo's Amateur
Nights were famous, launching the careers of diverse acts like Ella Fitzgerald and
Jimi Hendrix, and James Brown's 1962 album Live at the Apollo spent 66 weeks
on the Billboard pop charts. From Lincoln Center to Radio City Music Hall, New
York City is dotted with famous and historically important music venues, and
13
. )
virtually all of the world's most celebrated pre-1972 recording artists performed
there.
But perhaps New York's most famous concert of all was performed not in a
gilded hall in New York City, but in a muddy field on a dairy farm upstate in the
town of Bethel: The Woodstock Music Festival. Over three days in August in
1969, thirty-two acts performed outdoors before an audience of 400,000 at this
historic concert. Woodstock was not only a pivotal moment in popular music
history, but a definitive expression of the era's larger countercultural movement.
The event was captured in the award-winning 1970 documentary Woodstock, and
an accompanying soundtrack album immortalized iconic pre-1972 recordings by
Crosby, Stills & Nash, The Who, Santana, Joe Cocker, Jefferson Airplane, Richie
Havens, Joan Baez, Sly & the Family Stone, and Jimi Hendrix's electrifying
version of "The Star-Spangled Banner."
With such a rich and storied musical history, it is no wonder that New York
repeatedly served as a muse for writers and producers of iconic pre-1972
recordings, such as the jazz standard "Autumn in New York," recorded by Charlie
Parker (1946), Frank Sinatra (1949), and Billie Holiday (1952), among others;
"Take the 'A' Train," (1941) the signature tune of the Duke Ellington orchestra;
Ben E. King's 1960 hit "Spanish Harlem"; The Lovin' Spoonful's "Summer in the
City" (1966); and Joni Mitchell's "Chelsea Morning" (1969) .
14
.)
New York today remains the home of many of the best-known recording
artists of the pre-1972 era, who rely on the royalties earned from the exploitation of
their work. For example, pre-1972 recording artists that call New York home
include such musical entertainment legends as George Benson and Liza Minnelli,
as well as such diverse artists as rock and rollers Garth Hudson (The Band), Gary
Lewis (Gary Lewis & The Playboys), and Domingo "Sam" Samudio ("Wooly
Bully"), pop crooner Kay Starr ("Wheel of Fortune"), R&B hit-maker Lloyd Price
("Personality," "Lawdy Miss Clawdy") and jazz greats Lou Donaldson and Hugh
Masekela. The list goes on and on.
This wealth of musical talent and influence throughout the years exemplifies
New York's role as one of the world's most important centers for the creation of
music. New York's protective common law for performers and performance rights
reflects this State's compelling interest in safeguarding the economic vitality of its
music and sound recording industry. The district court understood the important
role that New York common law plays in protecting intangible property rights,
recognizing that "the common law . . . exists to protect the property rights of the
citizenry" and New York is "a state traditionally protective of performers and
performance rights." 62 F. Supp. 3d at 344 (A-1690).
Indeed, this Court has already acknowledged the importance of maintaining
robust protections for sound recording copyrights where, as here, technological and
15
)
marketplace conditions have evolved, noting that New York common law "has
allowed the courts to keep pace with constantly changing technological and
economic aspects so as to reach just and realistic results." Capitol Records, Inc., 4
N.Y.3d at 555 (quoting Metropolitan Opera Ass 'n v. Wagner-Nichols Recorder
Corp., 199 Misc. 786, 799 (Sup. Ct. N.Y. Cty. 1950)). Given the increasing
importance of the performance right to the music industry (see Section II, infra),
this Court should recognize New York's common law protection of this important
right here.
II. DIGITAL STREAMING OF SOUND RECORDINGS IS THE FUTURE
OF THE MUSIC INDUSTRY.
Royalties from public performances of digital transmissions of post-1972
recordings over the Internet ("streaming") have now become the most significant
and growing source of revenue for the music industry. 2 Increasing numbers of
consumers have turned to digital streaming services as their primary source of
musical content. See Joshua P. Friedlander, News and Notes on 2015 RIAA Music
Industry Shipment and Revenue Statistics, https://www.riaa.com/wp-
content/uploads/2016/03/RIAA-2015-Year-End-shipments-memo.pdf (In 2015,
"[f]or the first time, streaming was ~he largest component of industry revenues
2 The federal Copyright Act provides a right of digital public performance for post-
1972 recordings, ensuring that the owners of such recordings are paid for their use.
See 17 U.S.C. §§ 106(6) and 114; see also Copyright Law of the United States of
America and Related Laws Contained in Title 17 of the United States Code,
http://copyright.gov/titlel 7/92chap8.html (last visited Aug. 25, 2016).
16
)
)
.... "); Neil Shah, The Summer That Streaming Took Over, Wall St. J. (Aug. 25,
2016), http://www.wsj.com/articles/the-summer-that-streaming-took-over-
1472151516 ("As of June 30, 36% of music sales reported to Nielsen are from
streaming, up from 20% last year and far bigger than the 26% from physical
albums and 20% from digital downloads."); Victor Luckerson, Spotify and
YouTube Are Just Killing Digital Music Sales, Time (Jan. 3, 2014),
http://business.time.com/2014/01/03/spotify-and-youtube-are-just-killing-digital-
music-sales/ ("The rise of streaming has been swift."). Between 2010 and 2015,
the proportion of total United States music industry revenues from streaming grew
from just 7 percent to 34 percent, amounting to more than $2 billio.n annually. See
Friedlander, News and Notes, supra. The right to license and to be compensated
for the digital public performance of music is now more critical than ever to the
vitality and the economic survival of New York's music industry. Recognition of
a public performance right for pre-1972 sound recordings thus protects a critically
important source of revenue for New York's music industry, including for many
legendary recording artists and their families.
17
)
_)
III. RECOGNITION OF A PUBLIC PERFORMANCE RIGHT IN PRE-
1972 SOUND RECORDINGS IS ESSENTIAL TO PRESERVING THE
ECONOMIC VIABILITY OF AN ENTIRE ERA OF IMPORTANT
CREATIVE WORKS.
A. Pre-1972 Sound Recordings Have Significant Economic Value For
Their Owners, Recording Artists, And Their Families.
Pre-1972 sound recordings remain financially important to the owners of
those recordings, the artists who created and performed on them, and the~r families.
RIAA members routinely invest substantial sums to acquire, promote, and market
pre-1972 sound recordings. RIAA members' catalog divisions have hundreds of
employees engaged in a full range of music label activities, including reissuing
older albums, remastering recordings (which have been "fixed" on or before
February 15, 1972), and producing box sets and special occasion releases. The
RlAA's members regularly license these pre-1972 sound recordings for a variety
of uses, such as sampling and inclusion in movies, television, commercials, video
games, and third-party compilations. As a result, pre-1972 sound recordings are
continuously used and continue to generate significant revenue.
RIAA members continue to invest in acquiring, promoting, and marketing
pre-1972 sound recordings because those works remain commercially popular.
These pre-1972 recordings are not flashes in the pan-they are "evergreen" and
have proven their value by standing the test of time. A large percentage of best-
selling recordings sold today are compilations or reissues of pre-1972 sound
18
)
recordings that still have great appeal to music fans discovering the history of rock
and roll (so-called "millennials" are now driving the vinyl record trend) and
connoisseurs alike. They both may want to listen to "Elvis 2nd To None," "The
Very Best of Frank Sinatra," and "The Very Best of the Rolling Stones, 1964-
1971."
Of course, music fans are not the only contributors to the popularity of pre-
1972 sound recordings; other media keep the recording artists of the era alive in
the public's consciousness. Critically acclaimed and award winning "biopics" of
musicians, such as Ray (Ray Charles), Walk the Line (Johnny Cash), Dreamgirls (a
fictionalized version of Diana Ross and the Supremes), as well as more recent
films like Get on Up (James Brown) and Love & Mercy (Brian Wilson and The
Beach Boys), introduced new generations of audiences to these pre-1972 artists.
Television frequently uses pre-1972 sound recordings to evoke an era and help tell
a story. The music in the hit television series Mad Men, for example, documented
the tumultuous 1960s through its "musical moments, covering everything from
Chubby Checker to David Bowie." Amy Plitt, 25 Best "Mad Men" Musical
Moments, Rolling Stone (May 15, 2015), http://www.rollingstone.com/tv/lists/25-
best-mad-men-musical-moments-20150515.
New generations of audiences have been introduced to pre-1972 recordings
through their inclusion in movie or television soundtracks, and through other forms
19
I '
.)
of popular media, such as video games. As an example, director Wes Anderson's
popular film soundtracks "often highlight[] gems from the '60s and '70s." Jillian
Mapes, 20 Old Songs Wes Anderson Gave New Life: A Playlist, Flavorwire.com
(Mar. 7, 2014), http://flavorwire.com/443888/20-old-songs-wes-anderson-gave-
new-life-a-playlist. Sound recordings such as Nico's "These Days" (1967),
longtime New York resident David Bowie's "Life on Mars" (1971), and The
Who's "A Quick One While He's Away" (1966), "were all hits to a certain
generation of listeners, but through Anderson's films they became cultural touch-
points for millennials as well." Id. The popular Rock Band series of video games
exposed a generation of young "gamers" to such pre-1972 classics as Creedence
Clearwater Revival's "Fortunate Son," The Who's "Baba O'Riley," and The Jimi
Hendrix Experience's "Purple Haze." See Wikipedia, Complete List of
Downloadable · Songs for the Rock Band Series,
https://en.wikipedia.org/wiki/Complete_list_of_downloadable_songs_for_the_Roc
k _Band_ series (last visited Aug. 25, 2016).
In 2014, the soundtrack for the superheroes-in-space film Guardians of the
Galaxy topped the Billboard Top 200 charts, and was the first No. 1 soundtrack in
which the entire album was comprised of previously released sound recordings.
See Keith Caulfield, "Guardians of the Galaxy" Soundtrack Hits No. J On
Billboard 200, Billboard.com (Aug. 13, 2014), http://www.billboard.com/articles/
20
)
I
j
columns/chart-beat/6214496/ guardians-of-the-galaxy-soundtrack-no- I-billboard-
200.3 All of the sound recordings were originally released in the late 1960s and
1970s and contained such pre-1972 hits as Norman Greenbaum's "Spirit in the
Sky" (1969), The Five Stairsteps' "0-0-H Child" (1970), The Jackson S's "I Want
You Back" (1969), and Marvin Gaye & Tammi Terrell's "Ain't No Mountain High
Enough" (1967).
These examples demonstrates the vast umverse of pre-1972 sound
recordings that contains many of the most popular and valuable recordings ever
created-recordings that remain as relevant and sought after today as ever. New
York's public performance right in such recordings protects the value of this
treasure trove of popular music history.
We respectfully submit that it would be error to answer the certified question
in the negative and to not recognize a public performance right under New York
law with respect to these treasures. A music service should not be permitted to
transmit without payment the iconic recordings of The Beatles while being
required to pay for the right to transmit a recently popular and post-1972 "song of
the Summer" recording. Nor should it be the case that a music service should have
to pay for The Rolling Stones' "Start Me Up" (1981), but not their "(I Can't Get
3 Guardians of the Galaxy was a blockbuster movie, with a worldwide box office
of nearly $775 million. http://www.boxofficemojo.com/movies/?id=marvel
2014a.htm (last visited Aug. 25, 2016).
21
No) Satisfaction" (1965). Neither is it easy to reconcile requiring payment for the
digital transmission of the Four Tops' 1973 hit, "Ain't No Woman (Like the One I
Got)," but not for the transmission of the same group's earlier 1960s hits like
'1 "Baby I Need Your Loving," "Sugar Pie Honey Bunch," or "Reach Out." Both
fundamental fairness and logic compel the recognition of a public performance
right for pre-1972 sound recordings under New York common law.
B. Pre-1972 Sound Recordings Continue To Maintain Great
Cultural and Historical Significance.
The late 1950s through the early 1970s was a culturally explosive time in
this country like no time thereafter, and the music of that era was the soundtrack of
those times. The social and cultural issues that were at the fore then remain
predominant today: race, gender equality, politics, poverty, war, sex, and drugs.
Music commented on, and in many ways led, the national discourse like no other
media, and that music has withstood the test of time. Marvin Gaye's "What's
Going On" ( 1971 ), for example, was one of the era's most plaintive expressions of
concern about police brutality. Popular music included songs supporting civil
rights (Sam Cooke's "A Change Is Gonna Come" (1964), and the Impressions'
"People Get Ready" (1965), among others), opposing war (e.g., Donovan's
"Universal Soldier" (1964), Barry McGuire's "Eve of Destruction" (1965), and
J Black Sabbath's "War Pigs" (1970)), and proclaiming the importance of women's
liberation and equal rights (e.g., Aretha Franklin's "Respect" (1967) and Nancy
) 22
Sinatra's "These Boots Are Made For Walking" (1966)). Artists such as Mahalia
Jackson, Marian Anderson, New Yorker Joan Baez, and Dylan, among others,
performed at the 1963 March on Washington, singing songs that are embodied in
') well-known pre-1972 sound recordings. See Dream Songs: The Music of the
March on Washington, New Yorker (Aug. 28, 2013), http://www.newyorker.com/
culture/culture-desk/dream-songs-the-music-of-the-march-on-washington.
)
.)
The music of this era not only made music industry news; it made headline
news. The Beatles appeared on the cover of Newsweek, which also referred to the
opening riff of The Rolling Stones' "(I Can't Get No) Satisfaction" ( 1965) as "the
five notes that shook the world." See Scott Mervis, Rolling Stones Staple
"Satisfaction" Celebrates 50 Years, Pittsburgh Post Gazette (June 18, 2015),
http://www.post-gazette.com/ae/music/2015/06/18/The-Rolling-Stones-song-
Satisfaction-at-50/stories/201506180015.
This now iconic music permeated popular culture. As noted above,
countless artists appeared on The Ed Sullivan Show to perform their chart-topping
hits, from Elvis Presley to Ella Fitzgerald, the Four Tops, Gladys Knight and the
Pips, the Mamas & Papas, the Rascals, the Righteous Brothers, Jefferson Airplane,
New Yorkers Simon & Garfunkel, The Rolling Stones, and many others. See The
Official Ed Sullivan Site, All Artists, http://www.edsullivan.com/all-artists/ (last
23
)
_)
visited Aug. 25, 2016). The music of this period was diverse and innovative, and
lives on in popular music today:
Funk evolved from soul and into the main black genre of the 1970s;
then birthed disco and coexisted with it before being absorbed by hip-
hop. The funk/disco beat was the first modem beat, the earliest one
that kids today can relate to and dance to, the main strand of hip-hop's
DNA. In the early 1980s, samplers were invented, and . . . James
Brown was the most sampled artist, his tracks becoming the
foundations of countless rap tunes . . . . [I]t made him an icon . . . , the
godfather of soul, funk, and hip-hop.
Andrew Grant Jackson, 1965: The Most Revolutionary Year in Music 150 (2015).4
Pre-1972 sound recordings continue to play a significant role in our culture.
Rights to these recordings are and should be protected in full by New York law.
4 Post-1972 music from New York-notably, hip hop-grew out of this musical
tradition. The hip hop genre was arguably invented in the late 1970s by Bronx-
based recording artist and DJ Grandmaster Flash, whose Grandmaster Flash and
the Furious Five was the first hip-hop act to be inducted into the Rock and Roll
Hall of Fame in 2007. Netflix's just-released television drama "The Get Down," is
set during this era and features Grandmaster Flash as a character. Run-D.M.C.,
founded in 1981 in Queens, ranked the greatest hip-hop artist of all time by both
MTV and VHl, was the first hip hop group to have a gold album and be nominated
for a Grammy Award. Public Enemy, founded in Long Island in 1982, is ranked
number 44 on Rolling Stone's list of the 100 Greatest Artists of all Time, the
highest ranking hip hop act. See 100 Greatest Artists, Rolling Stone,
http ://www.rollingstone.com/music/lists/ 1 OO-greatest-artists-of-all-time-19691231
/public-enemy-20110420 (last visited Aug. 25, 2016). The rap group the Beastie
Boys released seven platinum or better albums from 1986 to 2004, including their
1986 album Licensed to Ill featuring their hit "No Sleep Till Brooklyn." LL Cool
J, a rapper and actor from Queens, is one of the forefathers of pop rap. Brooklyn-
bom and raised Biggie Smalls, also known as the Notorious B.I.G., was a central
figure in the East Coast hip hop scene in the 1990s before his death in 1997.
Staten Island's own Method Man, a rapper, producer, and actor, got his start in the
hip hop collective Wu-Tang Clan, and was later half of the duo Method Man and
24
CONCLUSION
Pre-1972 sound recordings are timeless and valuable. The owners of those
recordings, the artists who created and performed on them, and those artists'
) families, deserve to be compensated when those recordings are exploited by others
).
)
for profit. New York law recognizes these fundamental property rights. The
district court recognized those rights. So should this Court, which should answer
the certified question of whether there is a right of public performance for creators
of sound recordings under New York law in the affirmative.
Dated: August 29, 2016
George M. Borkowski
(pro hac vice pending)
RECORDING INDUSTRY
ASSOCIATION OF AMERICA, INC.
1025 F Street NW, Tenth Floor
Washington, DC 20004
Telephone: 202-775-0101
Fax: 202-775-7523
Kenneth L. Doroshow (No. 2470805)
Devi M. Rao (pro hac vice pending)
JENNER & BLOCK LLP
1099 New York A venue NW
Washington, DC 20001
Telephone: 202-639-6000
Fax: 202-639-6066
Counsel for Amicus Curiae Recording
Industry Association of America, Inc.
Redman. Other notable New York-based hip hop artists include Jay-Z, Nicki
Minaj, Sean "Puffy" Combs, 50 Cent, Busta Rhymes, Ghostface Killah, Wyclef
Jean, Talib Kweli, Nas, and Mos Def, to riame just a few.
25
CERTIFICATE OF COMPLIANCE
Pursuant to Rules of Practice 500.23(a)(l)(i) and 500.13(c)(l), I certify that
the foregoing brief is proportionately spaced, has a typeface of 14 points or more,
1 and contains 5,624 words.
August 29, 2016
J
)
26
Kenneth L. Doroshow
Attorney for the Recording Industry
Association of America
CERTIFICATE OF SERVICE
Kenneth L. Doroshow, an attorney, certifies that he caused three paper
copies of the Brief of Amicus Curiae Recording Industry Association of America,
Inc. Motion for Leave to Appear and File a Brief to be served via overnight mail
on the 20th day of September, 2016, on the following counsel of record:
Gibson Dunn & Crutcher, LLP
Caitlin Halligan Esq.
200 Park Avenue
New York, NY 20166-0005
(202) 351-6209
Counsel for Flo & Eddie, Inc.
O'Melveny & Myers, LLP
Daniel M. Petrocelli Esq.
1999 Avenue to the Stars
Los Angeles, CA 90067-6035
Counsel for Sirius XM, Inc.
Dated: September 20, 2016
1
Gradstein & Marzano, P.C.
Henry Gradstein, Esq.
6310 San Vicente Boulevard,
Suite 510
Los Angeles, CA 90048
(323) 776-3100
Kenneth L. Doroshow
JENNER & BLOCK LLP
1099 New York Avenue NW
Washington, DC 20001
Telephone: 202-639-6000
Fax: 202-639-6066