When the U.S. government created the copyright act of 1909, it didn’t provide protection to sound recordings, which were scarce at the time. However, even as the recorded music industry grew, it was not added until 1972 and previous sound recordings were not placed under federal protection at that time.
This means that all sound recordings (not compositions, which are federally protected) are under a myriad of state laws. This came to a head in 2013 when members of The Turtles filed a lawsuit against satellite music service SiriusXM claiming that they were failing to pay royalties for publicly performing their music. However, since there is no federal protection, the lawsuit has instead been filed in a series of state courts, including New York, California and Florida.
To date, the band has actually scored several victories, with judges in California and New York both agreeing that there is likely a public performance right under their state’s laws. However, the Second Circuit has agreed to take the case, setting the stage for possible federal intervention in the lawsuit.
Why It’s Important: The wealth of music recorded before 1972 needs no introduction. This case, obviously, could have significant consequences regarding how, when, where and at what cost it is played.
But the potential implications go well beyond that. Serious questions arise as to how all federal laws apply to pre-1972 sound recordings, if they do at all. For example, the Digital Millennium Copyright Act, which protects hosts from liability for infringement by users, may not apply to such recordings. The issue was previously litigated, without a real resolution.
However, the biggest impact may be in the form of bills that address this issue, and could cause even larger shifts in the copyright landscape.
Why It Was Ignored: Like most music licensing elements, this is an arcane area of copyright law that has little direct impact on most people. Even explaining why pre-1972 sound recordings are treated different takes a great deal of time and energy. It also doesn’t help that the main lawsuit involves a band that isn’t as recognizable as the artists in the Blurred Lines case.