Wednesday, February 5, 2014

Making Sense of the Tennessee Legislature's Legacy Sound Recording Protection Act



I have been trying to figure out the two new bills introduced in the Tennessee Legislature by Stacey Campfield and G.A. Hardaway dealing with digital performance royalties for pre-1972 recordings. The first bill called "Legacy Sound Recording Protection Act" states on its face that "the owner of a sound recording initially fixed on or before February 15, 1972 has the exclusive right to (among other things)” perform the sound recording publicly by means of a digital or satellite audio transmission".

As Betsy Phillips pointed out in the Nashville  Scene blog, the bill goes hand in hand with another bill which apparently seeks to establish a payment to artists on the resale of fine arts (this is similar to a law in California and other states).

Strangely, my gut reaction that all of this state law action would be preempted by Section 301 of the Copyright Act was incorrect due to a provision in that section that states "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 eliminated by this title until February 15, 2067."  It is well known that there is currently no federal copyright protection for sound recordings created prior to February 15, 1972.  However, I didn't realize that the Copyright Act specifically recognizes state laws protecting these older sound recordings.

 Until recently, state laws have been used fairly successfully in dealing with issues surrounding pre-1972 recordings. Campfield's bill draws attention to the fact that because there is no federal copyright protection for these older recordings, there is no digital performance royalty for these sound recordings either.  As digital delivery of music gains ever increasing traction, there appears to be a growing consensus that this needs to be remedied by Congress.  However as much as Campfield and Hardaway are to be commended for actually attempting to do something about this problem, it seems inconceivable that the law of one state (Tennessee) could protect "owners" of sound recordings in the other 49 states or that all 50 states would adopt some sort of uniform law  It also seems like a nightmare to lump these "owners" in with "artists" under the second proposed bill.

            I don't think this bill is the answer but I do think it is a step in the right direction and that it could force Congress to consider taking action in this area. Whether preemption applies or not, this is really a federal issue.

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