Congress Has Entered the Fight Between Pandora and Old-School Artists

Lawmakers introduced legislation Thursday that would make online radio firms pay royalties on songs recorded before 1972.

Bruce Williamson (C) performs with The Temptations during a celebration of African-American history month on February 12, 2008 in the East Room of the White House in Washington, DC. 
National Journal
Laura Ryan
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Laura Ryan
May 29, 2014, 12:57 p.m.

When Siri­us XM plays Buf­falo Spring­field’s “For What It’s Worth,” Steph­en Stills and his fel­low band mem­bers see not a single cent in roy­al­ties.

That’s be­cause the protest clas­sic was re­cor­ded in 1966, but fed­er­al copy­right law only pro­tects songs re­cor­ded after Feb. 15, 1972. Songs re­cor­ded be­fore that date are sub­ject to mukry state laws. And so Siri­us, Pan­dora, and oth­er di­git­al ra­dio ser­vices pay no roy­al­ties on “For What It’s Worth” — or on any oth­er song re­cor­ded be­fore that date.

Reps. John Con­yers and George Hold­ing don’t agree on much, but they agree that’s un­fair. The Michigan Demo­crat and North Car­o­lina Re­pub­lic­an, both mem­bers of the House Ju­di­ciary Com­mit­tee, in­tro­duced le­gis­la­tion Thursday that would would re­quire di­git­al mu­sic ser­vices to pay roy­al­ties to artists for songs re­cor­ded be­fore 1972.

Pre-1972 songs ac­count for up to 15 per­cent of all spins on di­git­al ra­dio and would have been worth $60 mil­lion in roy­al­ties for older artists in 2013, ac­cord­ing to Soun­dEx­change, the or­gan­iz­a­tion in charge of col­lect­ing and dis­trib­ut­ing roy­al­ties to re­cord­ing artists and one of the bill’s primary back­ers.

The 1972 cutoff has long evaded pub­lic no­tice be­cause un­til re­cently, re­cord­ing artists did not rely on the ra­dio for in­come, since tra­di­tion­al AM/FM ra­dio does not pay roy­al­ties on any sound re­cord­ings. But with the de­cline of re­cord sales, roy­al­ties from di­git­al mu­sic ser­vices like In­ter­net and satel­lite ra­dio are be­com­ing an im­port­ant source of in­come for artists, and older ones are feel­ing the pain of lost rev­en­ue as they hit re­tire­ment age. The le­gis­lat­ive push fol­lows a string of law­suits filed by re­cord la­bels and artists such as the Turtles against Siri­us and Pan­dora in the hope of re­cov­er­ing roy­al­ties.

Con­yers and Hold­ing un­veiled their bill Thursday joined by clas­sic artists, in­clud­ing Rich­ie Furay of Buf­falo Spring­field, Martha Reeves of Martha & the Van­delles, and the “Soul Man,” Sam Moore, who made their case to get paid. 

But the di­git­al mu­sic ser­vice com­pan­ies say the so-called Re­spect Act is just an­oth­er ploy by the ma­jor re­cord la­bels to pad their pock­et­books, as well as a dis­trac­tion from the need for broad­er copy­right re­form, since the bill would re­quire the mu­sic ser­vices to pay roy­al­ties on pre-1972 songs without grant­ing the songs full fed­er­al copy­right pro­tec­tion.

“It is a one-sided at­tempt to es­tab­lish se­lect pro­tec­tions that only help cer­tain parties — most of all, big re­cord com­pan­ies,” said Greg Barnes, gen­er­al coun­sel to the Di­git­al Me­dia As­so­ci­ation. “If Con­gress is go­ing to le­gis­late in this area of copy­right law, it should do so in a com­pre­hens­ive man­ner. That would be the surest way of show­ing true re­spect.”

To un­der­stand why these ser­vices pay the Tempta­tions for “Papa Was a Rol­lin’ Stone” but not “My Girl,” it’s help­ful to re­wind 40 years to the 1970s, when the Copy­right Act got its first ma­jor up­date since 1909.

Copy­right pro­tec­tion for sound re­cord­ings is a re­l­at­ively re­cent event. Un­til the Copy­right Act up­date in the ‘70s, only mu­sic com­pos­i­tions — the writ­ten mu­sic owned by song­writers and pub­lish­ers — were pro­tec­ted un­der fed­er­al copy­right laws.

When Con­gress de­cided to in­cor­por­ate sound re­cord­ings in­to copy­right, law­makers de­cided that pro­tec­tion would be­gin for songs re­cor­ded after Feb. 15, 1972, and not ap­ply ret­ro­act­ively, leav­ing older songs un­der the pro­tec­tion of a patch­work of state laws.

When the In­ter­net came along in the 1990s, Con­gress up­dated the Copy­right Act again so that new di­git­al mu­sic ser­vices would have to pay re­cord­ing artists in ad­di­tion to song­writers, but did not change the 1972 copy­right cutoff.

The feud over pre-1972 pay­ments is one of sev­er­al bids to ad­apt fed­er­al copy­right laws to the di­git­al era. The Ju­di­ciary Com­mit­tee is cur­rently un­der­go­ing a re­view of U.S. copy­right laws, and the U.S. Copy­right Of­fice is un­der­go­ing a sep­ar­ate study on mu­sic li­cens­ing.

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