The court fights involving the use of recordings made before February 15, 1972 continue to rage on. Earlier, we told you about a ruling from a California court in a case brought by Flo & Eddie (formerly of the Turtles) against satellite broadcaster SiriusXM. Now the duo has filed another suit, this time against Pandora. (There is also separate litigation from the major labels against Pandora and SiriusXM in other courts).
For the record, Future of Music Coalition supports paying all artists for the use of their work, including performers who recorded music before February 15, 1972.
The question is how this is accomplished. Is it through expensive litigation and appeals, with uncertainty from state to state and platform to platform? Or is it through uniform policy that sets the obligations for compensation regardless of the year a recording was made or the flavor of service? As we’ve said before, the latter is the best way to go.
So why is it that these artists aren’t already being paid when their music is played on radio or radio-like services?
The answer in part is that there is no federal copyright protection for recordings created before February 15, 1972. This was the date when Congress enacted a federal copyright for sound recordings, but they never got around to applying retroactive protections. We’ve previously described how this exception in the law leaves out a whole host of artists, and why full federalization of these recordings is the best option.
Keep in mind that there is a digital public performance right for sound recordings made after February 15, 1972. This means that satellite and Internet radio do pay labels and recording artists whose recordings were made after that date—the money is collected and distributed by the nonprofit SoundExchange, which pays the performers’ half directly to the artists. (Satellite and Internet radio also compensate composers and publishers a separate royalty through performing rights organizations ASCAP, BMI or SESAC.)
AM/FM radio, however, is not legally obligated to pay a dime to performers or sound copyright owners (usually the label, but sometime the artist). That’s not fair to the artists or the newer services.
All of the above is why there is currently so much consternation in the music community around radio royalties, who pays and under what conditions. This is something that Congress is eventually going to have to address.
We at FMC appreciate the digital public performance right for sound recordings because it pays performing artists directly and under fair splits. We understand that there are issues around rate-setting between the various platforms, but at a bare minimum, we think that all artists deserve to be paid when their music is used. And that’s regardless of their age.
There are other compelling reasons to place pre-‘72 recordings under federal copyright. Doing so would put older artists in a better position to assert their rights across the board, including their ability to recapture copyrights they had previously assigned to a label.
We’re not alone—our reccommendations are echoed by the United States Copyright Office, which has published a report on how Congress might go about doing so. Right now, the only real opposition to full federalization seems to be coming from the major labels, who haven’t had the greatest track record in terms of transparency and royalty payouts.
It’s time to solve this problem. We need licensed music platforms that grow the digital music marketplace while compensating musicians. We need all forms of radio to pay. We need the full suite of protections to be available to artists, regardless of their vintage. We’ll keep pushing for these outcomes, because it’s only fair.