Who gets paid when music is played across radio airwaves? Producers, composers, lyricists, labels, performers, who? Well…this is a messy question that is yet to be resolved if you’re a performer. To be clear, the confusion relates to the copyright in musical sound not the copyright in musical composition, which royalties are paid out to the copyright holder of such. But, as of late, an innovative interruption has occurred that could clarify – state law.

Some California and New York courts have recently held that in the absence of certain federal copyright law, state law provides performers with performance rights. In a seminal case in New York, Flo & Eddie Inc. v. Sirius XM Radio, Inc. and DOES 1-10, the court determined that New York state copyright laws granted performers, Flo and Eddie, performance rights where their pre-1972 sound recordings lacked federal copyright protection and their performance was broadcasted by Sirius XM Radio. This would allow Flo and Eddie to be entitled to compensation as performers for the broadcast of their musical performances, meaning that Sirius may be obligated to pay Flo and Eddie for past and current broadcasts. But, how?

The court analyzed, among other things, basic rights under federal copyright and allowed state law to embody the same where state law provided copyright protections in the absence of federal copyright protections. Looking at the bundle of rights belonging to a copyright owner, one of the sticks in the bundle is that of having the sole right to performance. This stick has historically been removed when protecting performers themselves, but it seems courts and states, at least in New York may be becoming conscious of this missing stick. The court essentially put the performance stick back in the bundle and held the bundle out against Sirius.

This two-edge sword causes (i) performers to be paid and (ii) audio broadcasting businesses to pay for current and possibly past broadcasting. Simply put, depending on the state, performers may be able to control who performs/broadcasts, or at minimum who compensates for, their actual performance, including broadcasters. Performers and businesses should better understand their state laws, copyright procedures and copyright owners to understand obligations and ability to control public performances of sound recordings.