The United States Copyright Office wants the oldies to become “goodies,” as demonstrated in its February 2015 Report that promotes equal protection for pre-1972 recordings. Music streaming companies profit from broadcasting chart-topping hits of earlier decades, such as the 50s and 60s, without obtaining a license because these songs lack federal copyright protection. The U.S. Copyright Office proposes changes to protect the classics that we still hear almost fifty years later and to alleviate the inconsistencies in protecting music under current copyright law.
The Copyright Act of 1976 (the “Copyright Act”) grants federal copyright protection to sound recordings created on or after February 15, 1972, but does not extend the same protections to pre-1972 sound recordings. The Copyright Act permits states to continue protecting pre-1972 recordings on a state-by-state basis, resulting in different rules of enforcement across state lines. For example, while both New York and California have criminal statutes to prohibit record piracy, the California Penal code exempts nonprofit personal use (while other states may not mention this at all) and seems to create more questions than clarity.
The lack of federal copyright protection for pre-1972 sound recordings also forces potential plaintiffs to bring separate suits in multiple states, even though the basis for the suit arises from the same event. Flo & Eddie, of the classic rock band the Turtles, filed suit against SiriusXM in California, New York and Florida for broadcasting their hit song “Happy Together.” Enforcing rights in multiple states can be costly, time consuming and put an extreme burden on plaintiffs.
As it stands, digital music providers take it upon themselves to determine whether or not they should be paying royalties for pre-1972 recordings. For example, YouTube and Spotify currently have licenses for broadcasting pre-1972 recordings, while others, like SiriusXM, do not. A California court decided SiriusXM’s exhibition of “Happy Together” without a license violates Flo & Eddie’s rights, and the New York court mirrored California’s sentiments soon after. A uniform standard would not only benefit plaintiffs, but it could also help save music broadcasters from defending against potential lawsuits in multiple jurisdictions.
In its Report, the U.S. Copyright Office recommends full federalization of pre-1972 sound recordings, so that pre-1972 copyright owners may enjoy the same rights and protections under the Copyright Act as those who recorded music after February 15, 1972. The proposal creates a federal compensation mechanism for those classic artists whose songs remain commercially valuable and are still broadcasted today. Also, it mirrors the California and New York decisions with regard to “Happy Together” by providing artists with a right to compensation for the public performance of pre-1972 recordings. The report provides clarity and uniformity among states as artists will no longer have to assert their rights to separately in each state.
The adoption of the Copyright Office’s proposal will significantly benefit artists and promote a fair music market place. Currently, all pre-1972 sound recordings will enter the public domain on February 15, 2067. Adopting the proposal will give at least some of the pre-1972 sound recordings protection far beyond 2067, as the current length of copyright protection extends for the length of the life of the author plus 70 years. If the proposed changes eventually become a reality, this could be the first step in reforming the somewhat complicated copyright system as it applies to music and affording all artists the benefits of any future amendments to the Copyright Act.