Musical Treasures and RESPECT

The British Invasion and Beatlemania were in the mid-1960’s. The Motown Sound and Surf music were hitting their creative peaks. And guitar legend Wes Montgomery was translating this creative explosion into cool jazz versions of Eleanor Rigby, Windy, California Dreamin and so many more.

All of these great vinyl and tape recordings had one thing in common under our copyright law. They were not protected. The Copyright Act did not apply to “sound recordings” until February 15, 1972. Claims to copyright on recordings could only be made in lawsuits in the few states willing to enforce rights in the century between the start of sound recordings and recognition in federal law.

Wes Montgomery died June 15, 1968 in Indianapolis. His music is still vital and can be heard every day through many outlets, including digital radio. Pandora has WES MONTGOMERY RADIO.  Spotify has his top tracks and albums. Many observers think they are the future for distributing and monetizing music.

The Copyright Act was amended in 1995 to require royalty payments to performers when their recordings were played on digital radio. Pandora and Spotify are 21st century companies and probably not even gleams in their founders’ eyes in 1995. Streaming had no 800 pound gorillas then to oppose the amendment.

It was a major step forward for artists, unless their performance was recorded before February 15, 1972. Those artists got nothing.

Then yesterday U.S. Representatives George Holding (R-NC) and John Conyers (D-MI) announced their Respecting Senior Performers as Essential Cultural Treasures (RESPECT) Act. Technically it amends §114 of the Copyright, a 20 page labyrinth that would make the Internal Revenue Code envious of its complexity. The RESPECT Act boils down to giving the same royalties to pre-1972 recording performers that all post-1972 performers already get.

Conyers represents a large chunk of Detroit and he spoke passionately about fairness to Motown artists. Holding’s district is east of Raleigh, and his sponsorship shows rare bipartisan support for substantive legislation in the House.

Project-72 is for the RESPECT Act and claims support from the Beatles to Mary Wilson of the Supremes and Brian Wilson of the Beach Boys. It estimates 15% of the music on digital radio is pre-1972 and its performers and their heirs lost $60 million in royalties last year. A small sum next to paying $3 billion for Beats Music and Electronics, but it could make a huge difference in the lives of the artists and their heirs.

Pandora, Spotify, and other players on the opposite side of the digital divide don’t want to pay more royalties to anyone. For them the bill is another burden on new services that puts them in jeopardy.

Beyond helping their business models, however, no one has yet explained why an arbitrary historical boundary logically sets the federal copyright value of artists’ recorded performances on February 14, 1972 or before at $0.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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