Freedom Line Blog

We at CFIF have long advocated greater fairness for musical performers in securing fairness for their performance rights.

Under byzantine laws, artists receive just compensation whenever their post-1972 recordings are played, but in many cases not for their pre-1972 recordings.  That’s an indefensible and arbitrary artifact that has persisted far too long.  Why should Neil Diamond receive payment whenever “America” is played, but not classics like “Solitary Man?”

Fortunately, the opportunity to correct that unfairness has arrived.  Even better, legislation to correct the existing flawed system arrives alongside other music legislation that galvanizes the coalition to finally correct the situation.  As a result, a broad coalition of music organizations representing everyone from songwriters, composers, performers, publishers and labels support three new pieces of legislation, as summarized cogently by the Recording Industry Association of America (RIAA):

The Music Modernization Act would be the most significant update to music copyright law in over a generation, and represents unprecedented compromise across all aspects of the music industry.  The bill reforms Section 115 of the U.S. Copyright Act to create a single licensing entity that administers the mechanical reproduction rights for all digital uses of musical compositions – like those used in interactive streaming models offered by Apple, Spotify, Amazon, Pandora, Google and others.  It also repeals Section 114(i) and, consistent with most federal litigation, utilizes random assignment of judges to decide ASCAP and BMI rate-setting cases – two provisions that will enable fairer outcomes for songwriters and composers.

The CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act) would benefit artists and music creators who recorded music before 1972 by establishing royalty payments whenever their music is played on digital radio.  SoundExchange would distribute royalties for pre-1972 recordings played by Internet, cable and satellite radio services just as it does for post-1972 recordings.  Currently, only sound recordings made after 1972 receive payments from digital radio services under federal law.

The AMP Act (Allocation for Music Producers Act) for the first time adds producers and engineers, who play an indispensable role in the creation of sound recordings, to U.S. copyright law.  The bill codifies into law the producer’s right to collect digital royalties and provides a consistent, permanent process for studio professionals to receive royalties for their contributions to the creation of music.”

Unfairness has persisted too long in America’s system of compensating musicians for performance of their songs.  The emerging coalition coalescing around these key pieces of legislation, which CFIF strongly urges all members of the House and Senate to support, and the White House to sign, allow a unified effort to finally bring reform in 2018.

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.