2.5.15 I CAN'T SEE ME SUING NOBODY BUT YOU

This article originally appeared in the 2.5.15 issue of Metroland

Maybe you’ve heard about how The Turtles’ Mark Volman and Howard Kaylan (a/k/a Flo and Eddie) just won a big lawsuit against Sirius radio that will entitle them to all kinds of money related to the satellite broadcaster’s use of their recordings.  Maybe you thought oh good for them, they’re stickin’ it to the Man, musicians should get paid more by the greedy corporations, power to the people right on, etc..  Which is a sane reaction until you realize what this really is all about.  And what it’s all about is what a steaming pile of crap our copyright laws are, how they’ve been hijacked and warped by lobbyists, and this ruling (and several more recent rulings that follow it) are just the copyright karma chickens coming home to roost.  It’s messy.

            Explaining this in 800 words is gonna be tough, but here goes.  It concerns sound recordings, which have long had a dicey relationship with copyright law.  Sound Recordings are considered derivative works of musical compositions and weren’t covered at all by federal copyright law until 1972 (musical compositions, on the other hand, have been covered by federal law since the 1830’s).  And when Congress decided that sound recordings were entitled to federal protection in 1972, it only protected recordings made in 1972 forward.  So owners of pre-1972 recordings have had to rely on state laws for protection.  And, as you might know, there are 50 states.  Some have statutes that protect sound recordings, some have built up court-made common laws, and they’re all a little different.

            Some court decisions in the 1930’s established that states’ copyright protection for sound recordings didn’t include the “public performance” of sound recordings.  In other words, radio could play the recordings on the air without getting permission or paying the owner of the copyright to the recording, which is typically a record company.  And when Congress decided to start protecting sound recordings in 1972, it followed this ruling, and carved out public performances from the protections sound recordings would get.  Why?  Well, inertia, for one, it was the way it always had been, but it was the broadcast radio industry lobbying that really did it, convincing Congress that airplay was just a promotional device to sell records, so no protection or royalty was necessary.  Never mind that songwriters had always had a public performance right in their compositions (ASCAP and BMI are licensing agents for songwriters’ public performance rights) and that every other performance-oriented art form (theater, film, choreography, etc.) had a public performance right.  No performance right for you, sound recordings!

            Following me so far?  Really? Weird got weirder in 1995, when Congress decided to give sound recordings a performance right, but only for digital transmissions, like satellite and internet radio and music services.  Compulsory licensing terms would be set by a tribunal under the aegis of the Copyright Office. Sound recording owners couldn’t refuse digital airplay, but they would get paid for it under pre-set terms.  So if your record got played on broadcast radio, you got nothing.  But if that same radio station had an internet feed, you got paid for that.  Stupid?  Yes.  Is this the shadow of lobbying and big money causing nonsensical changes in the law because of nothing but greed?  Absolutely.

            So along come Flo and Eddie arguing that (a) the 1995 federal digital performance right thingee doesn’t apply to their pre-1972 recordings and (b) the court rulings from the 1930’s were wrong, and that they have a performance right in their pre-1972 recordings.  And last fall a court, a federal district court on California, agreed.  And a couple of other courts, including one in New York, have also agreed.

            This opens not a can of worms, but a flotilla of snakes.  The finding that pre-1972 recordings have a performance right means that everybody who has been playing these songs, not just Sirius, but every radio station, music service (like Spotify), shopping mall, wedding hall, etc., may be on the hook.  For what?  We don’t know, because the royalty rate would be a matter of negotiation between the owners of the sound recordings and those who have used them.  There are lots of owners, not just Flo and Eddie (Flo and Eddie did something very smart years ago.  They bought their masters back from their record company), but record companies with pre-1972 catalogs. There are lots of users, and, again, there are fifty states, which might have differing spins on how this all goes down.  Does enforceability go back in time?  How far?  Who knows?  This is why god made lawyers!

            These rulings will all be appealed, and sometime in the not too distant future the issue could end up in front of the Supreme Court.  Or Congress could just jump in and say that federal law protects pre-1972 recordings, putting an end to all this nonsense.  Oldies stations could start disappearing because their corporate parents are worried about potential catastrophic liability.  Spotify could pull all pre-1972 tracks.  It is this cataclysmic and bizarre.

            Meantime, all the far-flung elements of what can laughingly be called “the music industry” are... wait for it... Unhappy Together! Stay tuned!

Paul C. Rapp is an urbane-yet-rural attorney from the wilds of the Berkshires who is making an art form of woodstove fire maintenance.