States of Music’s Pre-1972 Rights in a Digital Era
The debate on the protection of pre-1972 sound recordings is nothing new, but on October 26, 2017, the Florida Supreme Court decided in Flo & Eddie, Inc. v. Sirius XM Radio, Inc. that the public still has the right to play “older music.”[1]
Sound recordings first became protected under federal copyright law in 1972.[2] This means that all sound recordings before February 1972 are subject to protection under state law. What that protection includes is currently left up to the States.[3]
The lack of protection for sound recordings causes problems when it comes to compensating artists and licensing their music. Artists are not guaranteed that they will be paid fairly when internet or satellite radio stations play their music. Music services are vulnerable to federal liability for obtaining a license to play music because there is not a requirement to receive permission when they do so.[4] Post-1972 federal copyrights for sound recordings include a general right to control digital audio transmissions, which includes internet and satellite radio.[5] Consequently, AM and FM radio stations never pay royalties to record labels for playing pre-1972 songs.[6]
Some of the greatest American musicians, like Bob Dylan, David Bowie, The Temptations, The Supremes, Rolling Stones, and Jimi Hendrix, thus, do not have protection for their pre-1972 sound recordings. Yet, their sounds have been sampled repeatedly by artists, both recent and retired. This begs the question: why should the public performances of these songs not be protected, whereas their post-1972 renditions, and songs they inspired, are? State by state, owners of pre-1972 recorded music are challenging this lack of protection for their recordings. Flo and Eddie Inc., a company owned by two members of the rock band, The Turtles, active between 1965 and early 1970s, did just that in their case against SiriusXM.[7]
Flo and Eddie claimed that broadcasting companies, like SiriusXM, shouldn’t be permitted to play their songs, as pre-1972 recordings, without permission and paying royalties.[8] However, the Florida Supreme Court concluded that their claims conflict with Florida common law and case law.[9] Copyright holders of sound recordings in Florida never obtained the right to control performances.[10] A core reason for the Court’s decision in this case is that other individuals who aren’t party to a suit and aren’t within the State’s boundaries can be materially affected by the repercussions of these decisions.[11]
Artists’ works should undoubtedly be appreciated by the public and its users. But, subsequent legal risks associated with unlimited public performance rights of pre-1972 recordings would harm various music users including restaurants, digital music services, and broadcasters.[12] The lack of federal regulation over pre-1972 sound recordings isn’t completely favored by record labels either.[13] In October 2014, Sony Music Entertainment, Universal Music Group, and Warner Music Group, the three major music labels, brought suit against SiriusXM, claiming SiriusXM uses pre-1972 music to attract customers, yet refuses to pay the artists of the music it strategically uses to attract these customers.[14]
State courts continue to resolve this dilemma in response to the lack of action from legislatures. Conclusions reached in Florida and New York, on this issue, help small businesses engage in compensation agreements for pre-1972 sound recordings at their discretion.[15] Other states that are large music hubs, like California and Tennessee, have yet to take a stance on this topic.
I guess it’ll all be clear in 2067, when pre-1972 sound recordings enter the public domain after a 95-year slumber.[16]
Footnotes
