Illinois Federal Court Adds to the Controversy Surrounding Pre-1972 Sound Recordings
by Jerry Glover
September 1, 2017
For the past couple of years, both federal and state courts have been dealing with several lawsuits brought by the copyright owners of sound recordings produced before 1972 who believe that state common law copyright gives them the right to demand public performance royalties from radio stations and others when those stations broadcast their recordings. Why is this a controversy?
First, a short explanation of copyright law as it relates to music. A copyright can be obtained in each of two “types” of music:
- the musical composition (think of staff paper with notes and lyrics written on it) and the sound recording (the mechanical embodiment of the musical composition on a CD, a digital download, vinyl records, etc.). The copyright in the musical composition is usually owned by the song writer or assigned by the writer to the writer’s music publisher for licensing and other exploitation. The copyright owner of a musical composition has the right to control the public performance of that song and gets paid royalties for those public performances including radio broadcasts.
- The copyright in a sound recording is usually owned by a record label, although in the digital age it may be owned by the artist who wrote the song(s) on that recording. The US Copyright Act does not grant the sound recording owner the right to control the public performance of that recording. So, radio stations can broadcast a recording without being required to pay public performance royalties to the recording’s owner even though it must pay the musical composition’s writer who do control public performance rights in their songs. The only exception to this rule is when the sound recording is performed through digital transmission (for example, a radio station that simultaneously streams its broadcast on its internet site has to pay public performance royalties to the recording’s owner and artists on the recordings as well as public performance royalties to the owner of the composition on that recording).
To add to the confusion, US copyright law did not give copyright protection at all to sound recordings until 1972. Prior to that date, any copyright protection for sound recordings had to come from what is known as the common law copyright in each state. And with 50 states, that common law protection was not and is still not uniform. The extent of protection for sound recordings, if any, varied from state to state. In some states, the existence of common law copyright resulted from state court decisions; in other states, it arose from the passage of state statutes. But all common law copyright protection ended, and the federal copyright law took over, when a sound recording was “published”, i.e., made available to the public for sale, rental, lease, etc. And when federal copyright law takes over and controls pre-1972 sound recordings, there is no copyright protection and no royalties available for public performance!
A recent case filed in federal district court resolved the common law protection question for pre-1972 sound recordings in Illinois. The result did not favor those recordings. Sheridan v. iHeartmedia, Inc., 2017 WL 2424217 (N.D. Ill. June 5, 2017). In this case, the plaintiff owned the master recordings (i.e., the sound recordings) for songs from the 1950s and 1960s. The defendant played these recordings on both its internet and terrestrial broadcast radio stations without paying any royalty or license fee to the plaintiffs. The plaintiffs claimed the station’s actions violated the Illinois common law copyright protection for its pre-1972 recordings.
The court noted that Illinois’ common law copyright protects unpublished productions. The question then became had the plaintiff’s “surrendered” their common law protection by publishing the recordings (making them publicly available)? The plaintiffs claimed they had not. But the court held that the plaintiffs had published the recordings by authorizing their sale to the public as well as authorizing their broadcast.
The plaintiffs said that eliminating their common law protection would be “draconian” by denying them the monetary compensation they deserved. But the court noted that from the birth of sound recordings no one considered it an “obvious injustice” not to require broadcasters to pay owners of sound recordings for the broadcast of those recordings. After all, record labels once believed (and at one time it was true) that broadcasting sound recordings increased sales of those recordings in physical form like vinyl recordings and, later, CD’s. So the lack of performance royalties was offset by store sales. The broadcasters and the record labels did exist and continue to exist to some extent in a “symbiotic relationship.”