Do music streaming services need to pay royalties to play classic rock? It’s actually an open question. Some services have refused to pay performance royalties for all pre-1972 recordings. For many years, a false rumor persisted that because pre-1972 recordings are not protected by federal copyright law, they are not protected at all, and one need not pay royalties to use such recordings. To understand why that rumor is false, one needs to understand something about the history of legal protection for sound recordings in the U.S.
Prior to 1972, the Copyright Act of 1909 protected songwriters, but did not accord copyright to sound recordings on the federal level, and instead permitted each state to maintain its own common law of copyright. In 1972, Congress amended the 1909 Act to create an exclusive right for sound recordings produced after February 15, 1972. 17 U.S.C. Sec. 5(n) (1909 Copyright Act (Rev’d to 1973)).
Under the Copyright Act of 1976, Congress maintained the exclusive federal right of action for copyright infringement of post-1972 sound recordings and continued the practice of allowing states to protect the pre-1972 recordings, as late as 2067:
With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.
17 U.S.C. 301 (c)
Even though a copyright-protected work first published in 1920 would have fallen into the public domain upon expiration of its copyright term at the end of 1995, a record released in that same year may be protected under state laws until 2067.
In a 2011 report, the Copyright Office called for Congress to address the problems facing pre-1972 sound recordings before litigation erupts. The Copyright Registrar stated that the Copyright Act should be extended to protect pre-1972 sound recordings and alleviate the confusion caused by the current patchwork system:
To be clear, it is misleading to speak of state law as a single regime of protection. More accurately, it consists of multiple regimes of protection, sometimes vague and inconsistent, with the scope of rights and of permissible activities often difficult to discern. Federal Copyright Protection for Pre-1972 Sound Recordings: a Report of the Register of Copyrights (Dec. 2011) at 20.
Three years later, the Turtles, a 1960’s era rock band, won cases in New York and California forcing Sirius/XM and Pandora to pay public performance royalties for pre-1972 recordings, like the Turtles’ hit Happy Together. Both cases ended in late 2014.
Following the success of the Turtles litigation, a trio of California flower-power bands filed a class action suit in the Eastern District of New York to enforce copyright for the recordings of pre-1972 hits like the Flying Burrito Brother’s Sin City, Gram Parsons and Chris Hillman’s “cynical anthem for the music industry.” Zenbu, the owners of several recordings from Hot Tuna, New Riders of the Purple Sage, and the Flying Burrito Brothers, alleges that Apple Inc., Google Inc., Sony Corp, and several providers of online music services are infringing the common law copyrights of pre-1972 recordings by refusing to pay royalties on these recordings.
Just this month, the Copyright Office issued another report on the topic. In light of the Turtles’ decisions, the Registrar of the Copyright reiterated the call for Congressional action to avoid further litigation like the Zenbu case. Copyright and the Music Marketplace: A Report of the Register of Copyrights (Feb. 2015) at 141.
Not everyone agrees with the Copyright Office. Yes, the current state law for protection of pre-1972 recordings is complex and uneven. Yes, each state has a different mix of civil and criminal statutes, such as copyright, misappropriation, unfair competition, anti-piracy, and anti-counterfeiting statutes and/or common law copyright case law. However, because each state has its own scope of rights, exemptions, and types of remedies, owners of pre-1972 recordings argue that they have more robust and longer lasting protection under state law than federal copyright law.
For now, until Congress takes up this issue, protection of pre-1972 recordings remains in the hands of the courts.