Federal copyright law in the US is a rather strange thing; it is unusual in the fact that it does not contain a performing right as a component of the sound recording copyright. This means that AM/ FM radio stations must pay royalties to songwriters and music publishers but do not pay royalties to all artists and record companies.
However, the US law does have a provision for digital performing rights. What this means is that digital radio stations are required to have a licence and pay royalties to the record companies.
The oddities do not stop there, due to the US law the digital performing right is only applicable to sound recordings that have been released since 1972. Whilst the earlier recordings are protected by copyright, this is only done at a state level. The state laws remain silent as to the digital performing right.
Unsurprisingly, artists and record companies were not happy about this. Following a string of lawsuits, and specifically one lawsuit brought by musicians Flo & Eddie, of 1960s band The Turtles, did have some success in New York and California. A judge in New York held that just because the AM/ FM radio stations had not been paying royalties on the pre 1972 tracks for many years, it was not necessarily correct that there was not a general performing right. As is often the case, the appeal judges decided that in fact this was wrong.
Many record labels and artists saw this case, and a number of settlements were reached relating to the past, present and future playing of pre-1972 sound recordings. However, because of the appeal ruling and the fact that the case is still working its way through the Californian courts, the question of a general performing right in pre-1972 sound recordings remains largely unanswered.
This brings us to Republican, Darrell Issa and Democrat, Jerrold Nadler. The duo have a plan in the form of a creatively named Act, the Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act. No points for guessing what duo and their Act plan to do!
The Act plans to amend federal law so that all sound recordings that are still in copyright are covered by a US wide copyright system, this system will ensure that all of the songs will have the benefit of the digital performing right.
Figures in the US music industry have been very welcoming to the proposals, even Pandora a company that was formally sued for failing to pay royalties on pre-1972 tracks has been receptive of the proposal.
Steve Bené, general counsel for Pandora, explained that “For decades, the artists that gave the world Motown, jazz, and rock n roll have been hampered by antiquated and arbitrary laws – until now. While many heritage artists are compensated through direct licensing deals, including by Pandora, it’s the independent musicians that this bill rightly protects. We commend Representatives Issa and Nadler for bringing pre-1972 recordings into the modern era, and ensuring that our most cherished artists are finally on equal footing with their modern peers and paid for their record streams”.
As to the proposals, well first it would need to get through congress. However, with much of the music industry backing the proposal, the outcome is looking good for the classic songs.