Is it fair 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?
By way of perspective, no fewer than 305 of Rolling Stone’s 500 “Greatest Songs of All Time” were recorded before 1972, including 9 of its top 10. Additionally, 65 of its 100 greatest artists recorded songs prior to 1972, including all 10 of its top 10. Further, the overwhelming majority of artists inducted into the Rock & Roll Hall of Fame also recorded before 1972, as were 83% of the recordings in the Grammy Hall of Fame.
Yet due to a legal quirk, digital broadcasters decided they would stop paying royalties for music recorded before 1972, believing that they’re entitled to play them for free.
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.
Now, however, some in Congress seek to rectify that unfairness. Representative George Holding (R – North Carolina) has introduced the Respecting Senior Performers as Essential Cultural Treasures Act – the “RESPECT” Act. Under that legislation, digital radio stations that enjoy federal broadcast privileges would finally be obligated to provide royalty payments for songs recorded before 1972, in the same way they already pay for songs recorded after 1972, as a condition for maintaining their licenses. Importantly, the bill does not attempt to rework copyright laws or “federalize” pre-1972 recordings, which would introduce unnecessary legal complexity and confusion. Rather, it explicitly maintains existing protection under state laws. It simply conditions continued broadcasting privilege upon payment to artists for pre-1972 recordings. A long list of musicians, spanning Martha Reeves to Brian Wilson to the Allman Brothers to Al Green have signed on in support of the bill.
Digital radio has provided an amazing innovation for which we can all be grateful. Nevertheless, it’s simply unfair for them to attempt to exploit a legal quirk to avoid paying artists for songs recorded prior to the arbitrary date of February 15, 1972. Congressman Holding is therefore to be applauded for his effort, and Americans should contact their Senators and Representatives to voice their support.