Reps. Darrell Issa (R-Calif.) and Jerrold Nadler (D-N.Y.), the Chairman and Ranking Member of the House Judiciary Subcommittee for Courts, Intellectual Property and the Internet, recently introduced legislation to clarify the federal copyright protection available to pre-Feb. 15, 1972 sound recordings. The bill is entitled the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act (the CLASSICS Act).

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Current Copyright Protection for Pre-1972 Recordings

Sound recordings were first afforded federal copyright protection under the Sound Recording Amendment of 1971, which applies to recordings made on or after February 15, 1972. As a result, pre-1972 sound recordings are subject to a patchwork of state laws, and the scope of protection and of exceptions and limitations to that protection is unclear.

Because they are not covered by the Sound Recording Amendment of 1971, pre-1972 recordings are also excluded from new protections extended to sound recordings under the Copyright Act of 1976 and the Digital Millennium Copyright Act (DMCA). Simply put, digital music carriers such as Sirius/XM do not pay royalties for plays of pre-1972 master recordings, unlike post-1972 recordings.

This has led to a series of lawsuits filed in various state courts, most notably by Mark Volman and Howard Kaylan. Founding members of the 1960s band The Turtles and also known as Flo and Eddie, names given by Frank Zappa while Volman and Kaylan were members of Zappa’s Mothers of Invention and they were unable to use their legal names due to a prior contract with management, have led the charge in the litigation. However, the results have been mixed.   While Volman and Kaylan secured a favorable settlement in their California lawsuit, last year, New York’s highest court ruled that Sirius XM was not liable for payment of royalties from songs released prior to 1972.

Over the past several years, both Congress and the U.S. Copyright Office have studied how to bring pre-1972 sound recordings under the federal copyright regime. The CLASSICS Act may now end the uncertainty.

Copyright Protection Under the CLASSICS Act

Sponsors of the Classic Acts maintain that federal legislation is needed to clear up the legal ambiguity and ensure that digital transmissions of both pre- and post-1972 recordings are treated the same.

Regarding the importance of the federal copyright legislation, Rep. Issa said in a press statement:

This an important and overdue fix to the law that will help settle years of litigation and restore some equity to this inexplicable gap in our copyright system. It makes no sense that some of the most iconic artists of our time are left without the same federal copyright protections afforded to their modern counterparts. This bill is the product of a great deal of work to build consensus across party lines and varying interests all-over the music and entertainment landscapes on how to best resolve this long-standing problem. I’m very proud of the work we’ve done here. It will go a long way helping bring music licensing laws into the 21st century.

The CLASSICS Act does not accomplish full federalization of pre-1972 sound recordings. Rather, it seeks to harmonize how pre- and post-1972 recordings are treated, particularly with regard to digital audio transmissions. Below are several key provisions of the proposed legislation:

  • Digital Audio Transmissions: The bill provides that owners of pre-1972 sound recordings have the exclusive right to digitally broadcast them. It also subjects the newly created federal right for pre-1972 recordings to the same “compulsory license” regime that currently governs the digital broadcast of other sound recordings.
  • Safe Harbors: The bill provides key “safe harbors” and copyright defenses, such as fair use and the notice and takedown provisions of the DMCA, fully apply to pre-1972 recordings. It also ensures that the new federal right is considered an “intellectual property” right for the purpose of the “safe harbor” provision of section 230 of the Communications Decency Act.
  • Remedies: The bill provides that rights holders would be able to pursue legal action that is akin to a copyright infringement lawsuit. It states: “Anyone who, prior to February 15, 2067, performs publicly by means of digital audio transmission a sound recording fixed before February 15, 1972, without the consent of the rights owner, shall be subject to the remedies provided in sections 502 through 505 to the same extent as an infringer of copyright.” The proposed legislation also gives digital platforms the option of paying royalties for three years’ worth of past broadcasts in order to settle any outstanding litigation.

The CLASSICS Act has a long way to go before becoming copyright law. However, the bill has already garnered the support of organizations, including the Recording Industry Association of America, Pandora, musicFIRST, the GRAMMYs, SoundExchange, SAG-AFTRA, the American Federation of Musicians, the Future of Music Coalition, the Rhythm and Blues Foundation, and the Living Legends Foundation. We will continue to track its progress and post updates as they become available.

Do you have any questions regarding the CLASSICS Act? Would you like to discuss the matter further? If so, please contact me, Brent “Giles” Davis, at 201-806-3364.