Congress Proposes a Law to Get Oldies Artists Paid

Congress will tackle whether ‘oldies’ artists should get paid on pre-1972 tracks.

Two years ago, Pandora agreed to pay out $90 million over the contentious issue of streaming pre-1972 recordings.  Then, SiriusXM agreed to pay Flo & Eddie $99 million for having played The Turtles songs on its platform.  Now, Congress will deal with the contentious issue of streaming oldies tracks.

Ranking member Jerrold Nadler (D-NY) and Chairman Darrell Issa (R-CA) have introduced bipartisan legislation in Congress.  Dubbed the CLASSICS Act, the bill aims to close a long-standing gap in federal copyright law.  Specifically, the bill will deal with the uncertainty surrounding protections afforded to sound recordings made before 1972.  Along with artists, Pandora, SoundExchange, and the RIAA have rallied behind the bill.

With the CLASSICS Act, Nadley and Issa hope to introduce pre-1972 recordings into the federal copyright system.  If the bill passes, digital transmissions of both pre and post 1972 recordings will receive uniform treatment.

So, what’s the true issue at hand?

With the Sound Recording Amendment of 1971, Congress made sound recordings eligible for federal copyright protection.  The law only applied, however, to works created on or after February 15th, 1972.  This means that sound recordings before this date didn’t receive federal copyright protection.

The issue immediately created gaps between protection provided to pre-1972 and post-1972 recordings.  Pre-1972 recordings have received inconsistent legal treatment.  With the rise of digital music streaming, the gaps have only increased.  Rights holders, music creators, distributors, and the courts have yet to agree on how to fairly compensate ‘oldies’ artists.  Currently, only recordings made on or after February 15th, 1972 receive royalty payments from digital streaming services.

Case in point.  In 2013, The Turtles filed a class action lawsuit against SiriusXM.  They claimed that the digital broadcaster infringed on millions of pre-1972 recordings.  SiriusXM allegedly didn’t pay a dime.  Some states offers pre-1972 copyright protection; others do not.  Most oldies song lawsuits take place in the states that do.

Mark Volman and Howard Kaylen, formerly of The Turtles, filed for protection in New York, Florida, and California. In October 2014, a California judge ruled against SiriusXM. Judge Mary Strobel wrote,

“[Songs] must be interpreted to recognize exclusive ownership rights as encompassing public performance rights in pre-1972 sound recordings.”

A Florida court had previously ruled in the digital broadcaster’s favor.  The class action lawsuit was later overturned by the Second Circuit Court of Appeals in February.

Multiple organizations in the industry have praised the bill.  In a statement, Mike Huppe, president of SoundExchange, said that the CLASSICS Act would fix “a broken, antiquated policy.”  Cary Sherman of the RIAA said that the bill “was the right thing to do.”  Smooth jazz saxophonist Dave Koz felt “grateful to the sponsors of the bill for finally trying to even the scales.”  Steve Bené, Pandora Radio’s General Counsel, said that oldies artists have been hampered “by antiquated and arbitrary laws” until now.  The Supremes’ Mary Wilson said,

This is a great step forward for legacy artists.  Thank you to Representatives Issa and Nadler for recognizing that music made before 1972 is just as important and valued as post-1972 music.

Earlier this year, Issa and Nadler introduced the Fair Play Fair Pay Act.  The bill would force AM/FM broadcasters to pay artists and record labels more royalties when they play copyrighted sound recordings.  The National Association of Broadcasters have heavily opposed the bill.

Image by EFF Photos (CC by 2.0)