The issue of whether to enact performance rights for sound recordings has been debated by parties, courts, national legislatures, and intergovernmental bodies in various State, Federal, foreign, and international forums for more than 40 years. It was one of the most hotly contested issues in the recent program for general revision of the Federal copyright law, and it remains highly controversial. 1Performance Rights in Sound Recordings, House Judiciary Committee Subcommittee on Courts, Civil Liberties, and the Administration of Justice, pg iv (1978).

The Librarian of Congress wrote that in 1978. But the issue of performance rights for sound recordings in the US remains just as hotly contested 36 years later. The issue has heated up thanks to several recent court decisions involving satellite radio provider SiriusXM.

The public performance of sound recordings created after 1972 by satellite radio providers is governed under federal law by a compulsory license administered by the Copyright Royalty Board. 217 USC § 114(d)(2). According to the Hollywood Reporter, “Over the last few years, SiriusXM has been allegedly reducing its reported gross revenues by between 10 and 15 percent,” after deciding to stop paying royalties on sound recordings made before 1972. The result has been a number of lawsuits filed by various owners of pre-1972 sound recordings.

These court holdings could end up having a big impact on the music landscape, even if they may be appealed.

Music v. SiriusXM

The first decision came from a federal court on September 22, brought by Flo & Eddie, founding members of the rock band The Turtles. The Central District Court of California held SiriusXM liable for copyright infringement on a motion for summary judgment. During litigation, SiriusXM did not dispute that it was publicly performing Flo & Eddie’s sound recordings. Rather, it argued that public performance rights aren’t secured under California state law.

The court began its analysis by looking at the plain text of California’s copyright statute, which provides that

The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047, as against all persons except one who independently makes or duplicates another sound recording that does not directly or indirectly recapture the actual sounds fixed in such prior recording, but consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate the sounds contained in the prior sound recording.

The court asked, “What does it mean to have ‘exclusive ownership’ in a sound recording ‘as against all persons’?” Both ordinary meaning and the California legislature define ownership as “having the right to use and possess the recording to the exclusion of others.” The only exclusion to this right to use in the statute is an exclusion of the right to make “cover” versions of a sound recording (versions that “imitate or simulate the sounds contained in the prior sound recording” but “consist[] entirely of an independent fixation of other sounds”). The court inferred that the legislature didn’t intend any further limitations, “otherwise it would have indicated that intent explicitly.”

The court next found that the case law supports this interpretation, and noted that SiriusXM was unable to point to any cases that cut against a public performance right in sound recordings under California law. On the other hand, several cases do presume its existence.

More recently, a California state court adopted a jury instruction that includes public performance among a sound recording owner’s rights in a case brought by the RIAA. Like the federal court, the state court started with the plain text of the statute, finding it insufficient to answer the question of whether California’s copyright law secured a sound recording owner’s public performance rights.

Ownership of a sound recording is not as easily defined as ownership of tangible property. For example, a person may purchase a tangible good such as an automobile and use it how he or she wishes- drive it, give it to their child, resell it- without violating the automobile manufacturer’s rights. When an individual owns a sound recording and sells authorized copies of that sound recording to others, the issue of how those persons may use their authorized copies of the sound recording is more complicated. Can the purchaser play the recording for friends who did not purchase it? Can the purchaser broadcast it over an amplifying system at a party? Can it be digitally broadcast over the radio? Civil Code §980 does not explicitly address the issue of how purchasers of authorized copies of sound recordings may use those copies.

Taking judicial notice of the Flo & Eddie decision, the California state court was persuaded that the presence of one exception in the statute—for “cover” recordings—suggested an absence of any other limitations on rights. The court also agreed that the case law indicated a public performance right existed with no decision to the contrary.

“The pen is mightier than the sword”

While this is the first time courts have directly recognized a common law public performance right in sound recordings, the decision is consistent with the existing contours of non-federal copyright.

The first statutory recognition of a copyright owner’s exclusive right to publicly perform a work appeared in England in 1833. 3Dramatic Literary Property Act, 1833, 3 & 4 Will. 4, c. 15 (Eng.). The author of the Act, Edward Bulwer-Lytton, introduced the bill by pointing out that the object was to more completely secure an author’s property:

At this moment dramatic authors possessed no control over the use of their property . . . . A play, when published, might be acted upon any stage without the consent of the author, and without his deriving a single shilling from the profits of the performance. It might not only be acted at one theatre, but at 100 theatres, and though, perhaps, it filled the pockets of the managers, not a single penny might accrue from its performance, however successful, or however repeated, to the unfortunate author. 416 PARL. DEB., H.C. (3d ser.) (1833) 560 (U.K.), quoted in Shane D. Valenzi, A Rollicking Band of Pirates: Licensing the Exclusive Right of Public Performance in the Theatre Industry, 14 Vanderbilt Journal of Entertainment and Technology Law 759, 765 (2012).

The US extended the same protection in 1856, and like England, only to dramatic authors. 5Act of Aug. 18, 1856, 11 Stat. 138. An 1897 statute enlarged the public performance right to include nondramatic musical compositions — songs. 6Act of January 6, 1897, 44th Cong., 2d Sess., 29 Stat. 694. Around the same time, the technology to record and playback sounds themselves began to develop, and with that development brought new copyright questions. Congress provided that songwriters had the exclusive right to record songs onto phonorecords in 1909.

But while bills to include sound recordings among federally protected subject matter began to appear in Congress as early as 1925, 7H.R. 11258, 68th Cong., 2d sess. (1925). it would be several decades before the recording artists themselves would see their rights secured. States would first enact legislation to protect the copyright of recording artists, and finally in 1972, federal law extended protection — but only for reproduction and distribution, not public performance. 8Pub. L. 92-140, 85 Stat. 391 (1971). A 1965 report from the Register of Copyrights had noted that the issue of public performance for sound recordings remained “explosively controversial.” 9Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill” (1965). The Register concluded that while “we cannot close our eyes to the tremendous impact a performing right in sound recordings would have throughout the entire entertainment industry… We are convinced, under the situation now existing in the United States, that the recognition of a right of public performance in sound recordings would make the general revision bill so controversial that the chances of its passage would be seriously impaired.”

In 1995, Congress extended a right of public performance to sound recordings, limited, though, to digital transmissions. 10Digital Performance Right in Sound Recordings Act, Pub. L. No. 104-39, 109 Stat. 336 (1995). The right was cabined by a number of compulsory licenses, including one for non-interactive services (music services that resemble radio broadcasts). Interactive services, like Spotify, negotiate licenses directly with copyright owners of sound recordings for performances. Federal law still does not secure full public performance rights to sound recordings, so users such as AM/FM radio do not require permission to broadcast recordings (though they do need permission from songwriters and publishers to broadcast the underlying musical compositions).

The “general revision bill” mentioned above—which eventually became the 1976 Copyright Act—included a historically major change relevant to our discussion. Prior to the Act, both federal and state law concurrently protected copyright. 11Goldstein v. California, 412 US 546 (1973). The 1976 Act would include an express preemption provision, making copyright solely the province of federal law. 1217 U.S. Code § 301. Notably, that provision would not extend to sound recordings fixed prior to 1972, allowing state and common law to continue to protect them until February 15, 2067. 1317 U.S. Code § 301(c).

The question of whether to bring pre-1972 sound recordings under federal law now rather than waiting until 2067 remains a hot issue today. 14On May 29, 2014, Rep. George Holding introduced the RESPECT Act, which would require licensors under the compulsory licenses for digital audio transmissions to also license pre-1972 sound recordings, one step short of full federalization. As part of its ongoing copyright review process, the House Judiciary Subcommittee on Courts, IP, and the Internet held two hearings on music licensing issues, including whether the law should change regarding pre-1972 sound recordings. The US Copyright Office is currently involved in its own study of music licensing issues, including pre-1972 issues. Interestingly, in a report on performance rights in sound recordings released after the 1976 Act went into effect, the Copyright Office said:

Considerations of national uniformity, equal treatment, and practical effectiveness all point to the importance of Federal protection for sound recordings, and under the Constitution the copyright law provides the appropriate legal framework. Preemption of state law under the new copyright statute leaves sound recordings worse off than they were before 1978, since previously an argument could be made for common law performance rights in sound recordings. [Emphasis added.]

Publication and performance

While the federal copyright act is clear about the scope of the public performance right of sound recordings under federal law, the question remains about those made before 1972. I think further clarification can be found by looking at the concept of “publication” in copyright law.

Before 1976, federal copyright protection required publication—unpublished works were protected by common law. Publication destroyed this common law protection, and if the author did not register the copyright or otherwise comply with existing formalities, the work was considered abandoned or dedicated to the public. Despite its pivotal role, “publication” was not defined by statute, so it was up to courts to determine its precise meaning. And they fairly consistently held that a performance of a work did not amount to a publication of a work. The Supreme Court noted in 1912, “The public representation of a dramatic composition, not printed and published, does not deprive the owner of his common-law right, save by operation of statute. At common law, the public performance of the play is not an abandonment of it to the public use.” 15Ferris v. Frohman, 223 US 424, 435 (1912); See also E.J. MacGillivray, A Treatise upon the Law of Copyright in the United Kingdom and the Dominions of the Crown, and in the United States of America, pg. 296 (London 1902) (“Performance on the stage not being a publication, affects neither the right of copy nor the performing right.”); William Strauss, Protection of Unpublished Works, Copyright Revision Study No. 29, pp. 10-12 (1957).

But does this mean there is an independent right of representation or performance at common law? In Tompkins v Halleck, 16133 Mass. 32 (1882). the Supreme Court of Massachussetts said yes. There, the proprietor of an unpublished and unregistered play sought an injunction against defendants, who had memorized the play during performances and began putting on competing performances. Thus, the claim was not for some contractual breach or unauthorized copying, but unauthorized public performance at common law.

In reaching its conclusion that a common law copyright property interest includes an exclusive right of public performance, the Court explained:

Dramatic compositions differ from other literary productions not intended for oral delivery in this, that they have two distinct values, each worthy of protection; — that which they have as books or publications for the reader, and that which they have by reason of their capacity for scenic representation. They are works, in prose or poetry, in which stories are told or characters represented both by conversation and action. Some are poems cast in a dramatic form, capable of representation upon the scene rather than adapted to it, and whose most valuable characteristic is their purely literary merit. Others, of but slight literary pretensions, and affording but little satisfaction in the perusal, are found agreeable in representation from the spirited development of the story which is told in action, the vivacity and interest of the events displayed, even if the conversations of the imaginary characters, out of this connection, would appear tame and unattractive. The most perfect are those which, like some of the tragedies of Shakespeare, as Hamlet or Macbeth, are adapted alike to the library and the stage, and which address themselves more agreeably to those who read or those who hear, as such persons themselves differ in their respective capacities for enjoyment.

That the right of property which an author has in his works continues until by publication a right to their use has been conferred upon or dedicated to the public, has never been disputed. If such publication be made in print of a work of which no copyright has been obtained, it is a complete dedication thereof for all purposes to the public. If of a work of which a copyright has been obtained, it is so dedicated, subject to the protection afforded by the laws of copyright, the author accepting the statutory rights thereby given in place of his common-law rights. But the representation of an unprinted work upon the stage is not a publication which will deprive the author or his assignee of his rights of property therein. It will not interfere with his claim to obtain a copyright therefor. Nor will it deprive him of his power to prevent a publication in print thereof by another.

Nor can we perceive why it should deprive him of his right to restrain the public representation thereof by another.

The Court concludes, “The special use of his play made by the author, for his own advantage, by a representation thereof for money, is not an abandonment of his property nor a complete dedication of it to the public, but is entirely consistent with an exclusive right to control such representation,” a conclusion later cited positively by the US Supreme Court, which spoke of “the common-law right of representation in this country.” 17Ferris, supra., at 436. This is the same conclusion that at least one contemporary treatise had reached. William Theophilus Brantly, Principles of the Law of Personal Property, §67 pg 109 (San Francisco 1891) (citing Boucicalt v. Hart, 13 Blatchf. 47; Palmer v. DeWitt, 47 N.Y. 532) (“The unauthorized representation of an unpublished play is a violation of the owner’s common law, and not of his statutory rights…”).

That leaves us with one final question: If a public performance right in sound recordings is consistent, as I’ve argued, with the contours of state and common law copyright, then why have courts just now expressly recognized it?

In Productive Use in Acquisition, Accession, and Labour Theory, professor Eric Claeys describes legal property rights as sitting on a continuum between the right merely to use an object (use rights) and the right to exclude others from using an object (control rights). John Locke’s theory of labour, says Claeys, “is grounded in use [but] does not justify control rights straightforwardly.” How does one then derive control rights from a justification of use rights? Claeys argues:

In theories of natural law or rights like Locke’s, positive laws need not and often should not parallel strictly the moral principles they implement. Labour supplies a non-conventional ‘Foundation’ for property—but it justifies and requires the exercise of prudent judgment to implement the foundations it lays. For some assets—say, riparian water in temperate climates—legal use rights appropriately secure labor-based moral use rights. Paradoxically, however, for land and chattels, legal rights of exclusive control secure labour better than usufructs.

Logically, this means that rights may remain dormant, morally justified but not secured by positive law. The Second Circuit observed nearly sixty years ago that “Literary property is in essence a right to exclude, to a greater or lesser extent, others from making some or all use of the expressed thoughts of an author. The number of the conceivable grades of the extent of the exclusion and the number of the conceivable kinds of uses of the thoughts of authors are almost limitless.” 18Capitol Records v. Mercury Records Corporation, 221 F. 2d 657, 662 (2nd Circuit 1955). When and how the rights to these kinds of uses are secured by positive law is often more a matter of history than principle. In the last month, two courts have concluded that that right includes a right of public performance, and while the decisions are sure to be appealed, they are a welcome confirmation of a creator’s rights to the fruits of her labor.

References   [ + ]

1. Performance Rights in Sound Recordings, House Judiciary Committee Subcommittee on Courts, Civil Liberties, and the Administration of Justice, pg iv (1978).
2. 17 USC § 114(d)(2).
3. Dramatic Literary Property Act, 1833, 3 & 4 Will. 4, c. 15 (Eng.).
4. 16 PARL. DEB., H.C. (3d ser.) (1833) 560 (U.K.), quoted in Shane D. Valenzi, A Rollicking Band of Pirates: Licensing the Exclusive Right of Public Performance in the Theatre Industry, 14 Vanderbilt Journal of Entertainment and Technology Law 759, 765 (2012).
5. Act of Aug. 18, 1856, 11 Stat. 138.
6. Act of January 6, 1897, 44th Cong., 2d Sess., 29 Stat. 694.
7. H.R. 11258, 68th Cong., 2d sess. (1925).
8. Pub. L. 92-140, 85 Stat. 391 (1971).
9. Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill” (1965).
10. Digital Performance Right in Sound Recordings Act, Pub. L. No. 104-39, 109 Stat. 336 (1995).
11. Goldstein v. California, 412 US 546 (1973).
12. 17 U.S. Code § 301.
13. 17 U.S. Code § 301(c).
14. On May 29, 2014, Rep. George Holding introduced the RESPECT Act, which would require licensors under the compulsory licenses for digital audio transmissions to also license pre-1972 sound recordings, one step short of full federalization. As part of its ongoing copyright review process, the House Judiciary Subcommittee on Courts, IP, and the Internet held two hearings on music licensing issues, including whether the law should change regarding pre-1972 sound recordings. The US Copyright Office is currently involved in its own study of music licensing issues, including pre-1972 issues.
15. Ferris v. Frohman, 223 US 424, 435 (1912); See also E.J. MacGillivray, A Treatise upon the Law of Copyright in the United Kingdom and the Dominions of the Crown, and in the United States of America, pg. 296 (London 1902) (“Performance on the stage not being a publication, affects neither the right of copy nor the performing right.”); William Strauss, Protection of Unpublished Works, Copyright Revision Study No. 29, pp. 10-12 (1957).
16. 133 Mass. 32 (1882).
17. Ferris, supra., at 436. This is the same conclusion that at least one contemporary treatise had reached. William Theophilus Brantly, Principles of the Law of Personal Property, §67 pg 109 (San Francisco 1891) (citing Boucicalt v. Hart, 13 Blatchf. 47; Palmer v. DeWitt, 47 N.Y. 532) (“The unauthorized representation of an unpublished play is a violation of the owner’s common law, and not of his statutory rights…”).
18. Capitol Records v. Mercury Records Corporation, 221 F. 2d 657, 662 (2nd Circuit 1955).