We at CFIF strongly support free markets and property rights. That includes the rights of music writing and recording artists, who deserve to enjoy the fruits of their labor, which should not be affected by the means via which their creations are transmitted. Unfortunately, however, current law leaves them with no effective rights when it comes to terrestrial radio.
We also support legislation to correct the historical anomaly that digital radio broadcasters pay royalties for the privilege of playing songs recorded after the arbitrary date of February 15, 1972, but not for pre-1972 recordings.
As we stated in June of last year, the anomaly is due to a quirk in federal law, one that has unfair consequences:
Recordings predating 1972 remain protected by a patchwork of state laws, whereas recordings after February 15 of that year going forward are covered under federal law. That amounts to a historical idiosyncrasy, without any prevailing substantive logic. But digital radio stations, some of which center entirely upon pre-1972 music, have capitalized on the legal aberration to simply stop paying for performance of the pre-1972 songs still covered by state laws. Estimates of royalties lost as a result reach $60 million per year.
As a result, the Righteous Brothers’ “You’ve Lost that Lovin’ Feelin’” receives no payment, but Hall & Oats’s remake does. The Rolling Stones’ “(I Can’t Get No) Satisfaction” is not compensated, but Devo’s remake is. The Beach Boys get paid for “Kokomo” but not “Good Vibrations.” This situation has also led to numerous lawsuits spanning various states, adding further legal complexity and uncertainty for artists, consumers and digital broadcasters alike.
Digital radio stations operate under privilege of federal license to broadcast, but take the position that they need not pay for pre-1972 songs that remain protected under state laws. They profit from playing those songs, but refuse to pay accordingly. Keep in mind that unlike contemporary performers, many of those older affected artists are no longer capable of touring, and sales of their records have diminished over the years, leaving royalties for performance of their songs as their only remaining means of continuing compensation.”
We have noted how various state courts have overturned that anomaly within their jurisdictions, but it’s time that the same fairness was extended at the federal level.
Fortunately, bipartisan legislation introduced in the House today by Rep. Marsha Blackburn (R – Tennessee) and Jerry Nadler (D – New York) aims to resolve these forms of unfairness.
Entitled the “Fair Play Fair Pay Act of 2015,” the bill would end the way in which federal law props up AM/FM radio and exempts them from paying artists for performance of their songs. Also under the bill, digital radio stations that enjoy federal broadcast privileges would finally be obliged to provide royalties for songs recorded prior to 1972, in the same way they already pay for songs recorded after 1972, in order to maintain their licenses.
The Fair Play Fair Pay Act offers a corrective to years of unfairness in the industry, and it’s something that conservatives, libertarians and anyone who values property rights should support.