Bipartisan Bill Seeks Royalties for Pre-1972 Musical Works

A bipartisan bill has been introduced to establish copyright protections for performances of pre-1972 musical works.

Reps. Darrell Issa (R-Calif.) and Jerrold Nadler (D-N.Y.) are sponsoringH.R. 3301, the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (CLASSICS) Act.

“This an important and overdue fix to the law that will help settle years of litigation and restore some equity to this inexplicable gap in our copyright system," Issa said.

“For years, we have been working to ensure royalty payments for artists who recorded many of our great musical classics before 1972," said Nadler.

The new bill is an adjunct to the legislators'Fair Play Fair Pay Act music licensing bill introduced earlier this year and has been introduced in the past.

Among the most recent court disputes the legislation is intended to address is between SiriusXM and Flo & Eddie, a California corporation with the rights to songs by the 1960s group The Turtles ("Happy Together," "She'd Rather Be With Me").

Flo & Eddie had sued SiriusXM on behalf of itself and other pre-1972 artists claiming SiriusXM was infringing by caching and broadcasting (publicly performing) their songs for profit.

In avictory for broadcasters, who oppose the pre-1972 protections, the Second Circuit Court of Appeals in February cited a New York state appeals court's ruling that there is no right to performance fees for the creators of pre-1972 sound recordings and reversed a district court's denial of a SiriusXM motion for summary judgment and directed the court to dismiss the case with prejudice, meaning it can't be refiled.

SiriusXM plays the Turtles pre-1972 songs without a license and without paying for them, arguing it is fair use—at least in New York. Artists and record companies claim that violates common-law copyright and is infringement and unfair competition.

The bill would be a victory for those artists and record companies, something they were rushing to confirm.

"The CLASSICS Act is an important addition to the Fair Play Fair Pay Act that demonstrates continued momentum for passage of comprehensive music legislation," said Daryl Friedman of the Recording Academy. "While the oldest distribution model—radio—continues to live in the past, believing artists should not be paid, newer digital services are working with artists to resolve issues once thought intractable. We support this legislation and thank Reps. Darrell Issa (R-CA) and Jerry Nadler (D-NY) for their continued leadership to update music licensing."

musicFIRST executive director Chris Israel said: “Recordings made before the arbitrary date of February 15, 1972, are among the most popular and valuable in the world. And yet, because of an anomaly in U.S. copyright law, the creators of those sound recordings have had to endure years of litigation simply for the right to be paid, and the litigation continues to this day. It’s time for Congress to fix this injustice so legacy artists are paid when their music is used by digital radio."

(Photo via Alan Levine's Flickr. Image taken on July 19, 2017 and used per Creative Commons 2.0 license. The photo was cropped to fit 9x16 aspect ratio.)

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.