Is There a Performance Right For Pre-1972 Recordings Under New York Law?

New York Law Journal recently published an article discussing a copyright case involving pre-1972 sound recordings, available here. To recap:

Under current federal copyright law, music recorded after 1972 is entitled to certain protections, but it is unclear what, if any, protection is available for music recorded before 1972 under New York state law.  While New York provides no statutory protection to owners of pre-1972 sound recordings, the U.S. Court of Appeals for the Second Circuit noted that the state’s common law provides certain rights to copyright holders in these recordings.  The Second Circuit has asked the New York Court of Appeals to determine whether there is a right of public performance for creators of sound recordings under state law and if so, what the nature and scope of that right is.  The Second Circuit stated that it needed clear guidance from the New York Court of Appeals to decide whether copyright holders of pre-1972 recordings could bar broadcast of their materials, which could force broadcasters to pay royalties for a multitude of pre-1972 recordings by artists like the Beatles and the Rolling Stones.