Artist Progress, Pre-1972

U.S. copyright law currently has an odd loophole that limits federal protection for sound recordings to those made on or after February 15, 1972. This means that the full catalog of sound recordings by the Beatles, John Coltrane, Janis Joplin, and countless others receive no federal protection, and therefore do not benefit from many of the revenue streams associated with sound recordings. This distinction has been a serious point of contention for many years; however, recently, several steps were taken toward closing the loophole and ensuring equitable treatment of all sound recordings.

The RESPECT Act

On May 29^th of this year, a rather odd group gathered in the Rayburn House Office Building for an event the likes of which are not often seen on Capitol Hill. The group, which included SoundExchange CEO Mike Huppe, musicians Martha Reeves, Richie Furay, Roger McGuinn, and Sam Moore, and a number of members of Congress, among others, met to give short speeches, and, in some cases, perform pre-1972 songs of theirs in honor of the launch of the Respecting Senior Performers as Essential Cultural Treasures Act. The bill, known as the RESPECT Act, was introduced by Rep. George Holding (R-NC), and longtime music advocate Rep. John Conyers (D-MI), and, if passed, would grant pre-1972 recordings the same public performance right given to other sound recordings. This right would entitle legacy artists to royalties, distributed through SoundExchange, whenever their recordings are played on non-interactive streaming services, such as Pandora, and on satellite radio.

The bill, which has about a 37% chance of being enacted,¹ would create a significant new income stream for some legacy artists, many of whom still have to tour full time just to make ends meat. That being said, in order for these artists to receive the respect they deserve, their recordings need to be granted full federal protection. Full federalization would allow these artists to recapture the rights to their songs, many of which are extremely valuable, from their record labels, and exploit the full range of rights given to the owner of a copyrighted work. Unfortunately, despite support for full federalization from the Copyright Office, the lobbying efforts of the major labels have been effective in preventing any serious steps toward full federal protection for pre-1972 recordings.

Court Cases

Because pre-1972 sound recordings are not eligible for federal protection, they must instead rely upon state law. Recently, several groups have taken advantage of this through lawsuits, primarily in California, against Sirius XM and Pandora. The most notable of these is a recently decided case in which Mark Volman and Howard Kaylan, also known as Flo and Eddie, of the Turtles sued Sirius XM for their failure to pay the duo for their pre-1972 recordings. The court ultimately sided with Flo and Eddie, finding that California law covers the public performance of pre-1972 recordings. SiriusXM will almost certainly appeal the decision, but this is nonetheless a significant step for pre-1972 artists, and, if upheld, could have a far-reaching impact on the music industry.

Whether by legislation or litigation, it seems that we are on the verge of a significant victory for artists who have been disadvantaged by current copyright policy. However, as we move forward it is important to remember that these artists deserve more than a stopgap, they deserve respect, and protection that is equitable to that given to those who came after them.

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