This article originally appeared in the 2.5.15 issue of Metroland
Maybe you’ve heard about how The
Turtles’ Mark Volman and Howard Kaylan (a/k/a Flo and Eddie) just won a big
lawsuit against Sirius radio that will entitle them to all kinds of money
related to the satellite broadcaster’s use of their recordings.
Maybe you thought oh good for them, they’re
stickin’ it to the Man, musicians should
get paid more by the greedy corporations, power to the people right on,
Which is a sane reaction until you
realize what this really is all about.
And what it’s all about is what a steaming pile of crap our copyright
laws are, how they’ve been hijacked and warped by lobbyists, and this ruling
(and several more recent rulings that follow it) are just the copyright karma
chickens coming home to roost.
this in 800 words is gonna be tough, but here goes.
It concerns sound recordings
, which have long had a dicey relationship with
Sound Recordings are
considered derivative works of musical
and weren’t covered at all by federal copyright law until 1972
(musical compositions, on the other hand, have been covered by federal law
since the 1830’s).
And when Congress
decided that sound recordings were entitled to federal protection in 1972, it
only protected recordings made in 1972 forward.
So owners of pre-1972 recordings have had to rely on state laws for
And, as you might know,
there are 50 states.
Some have statutes
that protect sound recordings, some have built up court-made common laws, and
they’re all a little different.
court decisions in the 1930’s established that states’ copyright protection for
sound recordings didn’t include the “public performance” of sound
In other words, radio could
play the recordings on the air without getting permission or paying the owner
of the copyright to the recording, which is typically a record company.
And when Congress decided to start protecting
sound recordings in 1972, it followed this ruling, and carved out public
performances from the protections sound recordings would get.
Well, inertia, for one, it was the way it always had been, but it was
the broadcast radio industry lobbying that really did it, convincing Congress
that airplay was just a promotional device to sell records, so no protection or
royalty was necessary.
Never mind that songwriters
had always had a public
performance right in their compositions (ASCAP and BMI are licensing agents for
songwriters’ public performance rights) and that every other
performance-oriented art form (theater, film, choreography, etc.) had a public
No performance right
for you, sound recordings!
me so far?
Really? Weird got weirder in
1995, when Congress decided to give sound recordings a performance right, but
only for digital transmissions
satellite and internet radio and music services.
Compulsory licensing terms would be set by a
tribunal under the aegis of the Copyright Office. Sound recording owners
couldn’t refuse digital airplay, but they would get paid for it under pre-set
So if your record got played on
broadcast radio, you got nothing.
that same radio station had an internet feed, you got paid for that.
Is this the shadow of lobbying
and big money causing nonsensical changes in the law because of nothing but
along come Flo and Eddie arguing that (a) the 1995 federal digital performance
right thingee doesn’t apply to their pre-1972 recordings and (b) the court
rulings from the 1930’s were wrong, and that they have a performance right in
their pre-1972 recordings.
And last fall
a court, a federal district court on California, agreed.
And a couple of other courts, including one in
New York, have also agreed.
opens not a can of worms, but a flotilla of snakes.
The finding that pre-1972 recordings have a
performance right means that everybody who has been playing these songs, not
just Sirius, but every radio station, music service (like Spotify), shopping
mall, wedding hall, etc., may be on the hook.
We don’t know, because
the royalty rate would be a matter of negotiation between the owners of the
sound recordings and those who have used them.
There are lots of owners, not just Flo and Eddie (Flo and Eddie did
something very smart years ago.
bought their masters back from their record company), but record companies with
pre-1972 catalogs. There are lots of users, and, again, there are fifty states,
which might have differing spins on how this all goes down.
Does enforceability go back in time?
This is why god made
rulings will all be appealed, and sometime in the not too distant future the
issue could end up in front of the Supreme Court.
Or Congress could just jump in and say that
federal law protects pre-1972 recordings, putting an end to all this
Oldies stations could start
disappearing because their corporate parents are worried about potential
pull all pre-1972 tracks.
It is this
cataclysmic and bizarre.
all the far-flung elements of what can laughingly be called “the music
industry” are... wait for it... Unhappy Together! Stay tuned!
C. Rapp is an urbane-yet-rural attorney from the wilds of the Berkshires who is
making an art form of woodstove fire maintenance.