Convoluted Laws for Pre-1972 Music Can Restrict its Availability
Convoluted Laws for Pre-1972 Music Can Restrict its Availability
Convoluted Laws for Pre-1972 Music Can Restrict its Availability

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    Members of the band The Turtles, best known for their 1967 song “Happy Together,” have filed a class-action lawsuit against SiriusXM, saying that the satellite radio company is violating the rights they have in their sound recordings by playing their music to satellite radio subscribers without permission.

    Sound Recording Copyrights are Recent, and More Limited

    This might seem to be a strange oversight on the part of SiriusXM, except that normally, radio services don’t need to get permission to play music. This is because copyrights for recording artists are a relatively recent phenomenon. In fact, recording artists didn’t have *any* copyright rights in their works until 1972. Even after 1972, when Congress decided to expand copyrights to include recorded sound (copyrights in sheet music had been allowed since the 1830s), it did so in a limited manner. Recording artists could prevent others from reproducing, making derivative works of, or distributing copies of their works, but they couldn’t stop anyone from publicly performing them. 

    That included broadcasters, who were free to play records over the air without permission or payment to the people who made the records. Even much later, when Congress decided to expand recording artists’ rights to include public performance “by means of a digital audio transmission,” it also included a statutory license for that right, meaning that satellite radio and webcasters, who make digital audio transmissions, don’t have to get permission from recordings artists—but they do have to pay for the use of their songs. (These statutory licenses in section 114, which are calculated differently depending upon the type of broadcaster, are the source of a lot of the conflict you might be hearing about internet radio rates.)

    State Copyright Law?

    But the Turtles argue that these laws don’t apply to their catalog. That’s because they’re not actually claiming copyright infringement as we know it—they’re saying their rights under California state law were infringed.

    Yes, copyright is a federal system of laws, and yes, in nearly all cases, that means it supersedes (and is meant to supersede) state laws that try to do the same thing. But in this case, there’s a potentially troubling gap.

    When Congress decided to include sound recordings within copyright in 1972, it didn’t retroactively bring existing sound recordings under that protection. So pre-’72 sound recordings fall outside the scope of copyright laws. This leaves room for the states to have their own quasi-copyright laws governing them. Most states have specific statutes on the books to prevent bootlegging, copying records and so on, and there are also common law causes of action like misappropriation that are often generally applied to people making unauthorized copies of pre-’72 sound recordings.

    As to whether or not California’s laws actually prevent SiriusXM from playing pre-’72 sound recordings, there’s a lot of state-specific law to get into, including whether the state laws cover public performances or just reproductions, whether the elements of the common law claims are met, whether laches or fair use might apply, and so on. But there’s a major policy consideration lurking amongst the legal questions, too.

    Losing Access to Culture

    If the Turtles are right and Sirius needs to get permission for pre-’72 recordings, there’s a big problem looming on the horizon. For one thing, if you have to seek permission, instead of relying upon a statutory license, it becomes just that much harder for someone to get the music on the air—the costs of finding and negotiating with different rightsholders can be too great to bother, in lots of cases, and even if rightsholders (very likely the major record labels) band together to offer “blanket” licenses, that leaves a lot of independent artists in the cold, and the catalog of available music even smaller. Add to that the problems of figuring out where the rights are for each of at least 50 different state jurisdictions, and playing tracks from before 1972 becomes a far less attractive proposition than before.

    And this wouldn’t just be a problem for Sirius; a major question left open by this lawsuit is whether or not the same sorts of state laws mean that radio stations and other “public performers” of recorded music could face the same sorts of lawsuits. They could well face the same questions about what they want to risk in litigation, and what they’re willing to spend on lawyers to negotiate licenses, and which tracks and catalogs they want to license. A legal landscape that looks the way the Turtles would have it creates a much sharper divide between music recorded before and after 1972, raising the barriers for that older music.

    There’s another year in the 20th century that acts as a similar divide. A March 2012 piece in the Atlantic has recently been making the rounds again. In a striking graphic, it breaks down, by the decade of their publication, the number of newly-printed books available on Amazon. Looking back, the latest decade available (the 2000s) show as a sharp spike—understandable in that people want to read recently-written books. It drops precipitously in the ’90s, and remains at an extraordinary low level until it hits the ’20s.

    The reason for this dramatic dip in book availability? Copyright law. Books clearly in the public domain—those published before 1923—are much, much more available for readers to buy. Only those in-copyright titles that are regular sellers are likely to give the sellers the margins they need to invest in stocking them.

    This chart gives us a hint of what might lie on the other side of a case that makes pre-’72 recordings more expensive. It’s not that they’ll disappear from the radio or webcasting services—there’s a known demand for the Beatles, the Rolling Stones, and the tops of the chards from decades before them.

    But what about the entire universe of music that isn’t already at the top of the rotation? How will that fare? And when commercially-owned works aren’t being accessed in the market, what does that do for their preservation? This isn’t a theoretical question: one of the primary reasons that copyright lawyers worry about pre-’72 recordings is the question of how they can be preserved. See, for example, this article, which talks about how the uncertainty of state laws on sound recordings frustrates important historical research and preservation.

    The legislative history on the topic of older sound recordings has seemed to indicate that Congress always meant to get around to resolving what to do with them. In the meantime, however, the field remains open not just for disputes between musicians, labels, distributors, and users, but for a world where those disputes make the past that much more foreign to our ears.