The 1976 copyright act federalized copyrights for post 1972 sound recordings. Sound recordings made pre-1972 were covered and remain covered by state copyright laws. The 1976 act did not strip the works of copyright protection. Several years ago digital broadcasters and non-interactive streaming services all decided (simultaneously) that the Digital Performance Right in Sound Recordings Act of 1995 did not apply to works copyrighted before1972. And ever since these services have tried to avoid paying performers who had the misfortune to record before 1972. This is often referred to as a” loophole.” But I have always maintained that there is no loophole. The DPRA did not specify that the sound recordings be protected by federal copyright to receive digital performance royalties. Just copyright. State copyright for instance. Look it up if you don’t believe me.
Further in order to maintain this legal stance, you have to believe that the members of congress that drafted and passed the DPRA specifically intended to deny digital royalties to the likes of Duke Ellington, Aretha Franklin, The Allman Brothers, Ray Charles, Willie Nelson, and Captain Beefheart to name just a few. Nowhere in the congressional record is this reflected. Nowhere. It’s a complete fiction. Yet the increasingly lazy and myopic federal courts can’t be counted on to look at the record or even the text of the act. Therefore a wide range of musicians, unions and industry trade groups have come together to try to fix this problem. This is an easy fix. This act makes it explicit that this applies to pre-1972 recordings. It’s simple matter of fairness. Everyone loves fairness. It’s like kittens.Who could possibly be against kittens? I mean aside from Lofgren and Sensenbrenner Let’s get this done.
Below is the press release from…
Historic Coalition of 213 Musical Artists Calls on Congress to Pass CLASSICS Act,
Fix the “Pre-1972” Loophole for Legacy Artists
Music Organizations Press Congress to Consolidate
Widely Backed Music Licensing Reforms Into Single Bill
WASHINGTON, February 13, 2018 — An unprecedented coalition of 213 musical artists, supported by eight leading music organizations, called upon the U.S. Congress to pass the CLASSICS Act, bipartisan legislation pending in both the House and Senate to address one of copyright law’s most glaring loopholes.
In a two-page advertisement that will appear in Wednesday’s Politico, the artists state:
Digital radio makes billions of dollars a year from airplay of music made before Feb. 15, 1972. Yet, because of an ambiguity in state and federal copyright laws, artists and copyright owners who created that music receive nothing for the use of their work. The CLASSICS Act (H.R. 3301 / S. 2393) would correct this inequity and finally ensure that musicians and vocalists who made those timeless songs finally get their due. We urge Congress to pass the CLASSICS Act and other pro-artist reforms quickly.
The advertisement marks the start of a robust advocacy campaign by artists and music community leaders A2IM, American Federation of Musicians, Content Creators Coalition, musicFIRST Coalition, Recording Academy, Recording Industry Association of America, SAG-AFTRA and SoundExchange.
The ad can be viewed here.
The CLASSICS Act is an essential component of a package of music licensing reforms supported by the organizations that includes additional critical reforms such as the Music Modernization Act (H.R. 4706 / S. 2334), the AMP Act (H.R. 881) and the establishment of market-based rate standards. In the coming weeks, music community leaders anticipate the House Judiciary Committee will commence formal consideration of the music licensing reform legislation with the goal of consolidating the key reforms into a single bill.
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