Copyright Case Study: NO RESPECT for the QUEEN of SOUL
The recent death of Aretha Franklin gave us the opportunity to remember her incredible body of work and reflect upon her legacy as a musical and feminist icon. But, her legacy as an extraordinary performer and artist also underscores a surprising quirk in U.S. copyright law. Melissa B. Paradis, a partner with Smith Duggan Buell & Rufo LLP who concentrates her practice in trademark law, copyright law, and intellectual property litigation, explains.
Did Ms. Aretha Franklin ever receive a single royalty payment for any of the approximately seven million times her signature song RESPECT was played on the radio?
Surprisingly, the answer is no.
How could that be?
In 1909, Congress passed the first comprehensive federal copyright statute which, among other things, authorized the protection of musical works and granted exclusive performance rights to the composer. The 1909 Act -- which pre-dated radio and other broadcast media -- reflected a traditional system of copyright law in which classical composers were valued as the creators of an original work of art, whilst musicians and performers were seen primarily as a vehicle by which the public could experience the composer’s art.
For the next 60 years (and more), the exclusive right to public performance of copyrighted works applied only to musical compositions, not to the sound recordings of those compositions. As a result, the owners of a musical composition (i.e. songwriters and/or publishers) received performance royalties each time their song was played on the radio, but the owners of the sound recording (i.e. the recording artist and/or record label) did not.
Aretha Franklin recorded and released the song “Respect” in 1967 -- her arrangement and performance making it into a feminist anthem for generations. However, Ms. Franklin did not write the underlying composition. That songwriter was Otis Redding, who first wrote and released the song “Respect” in 1965.
Because Mr. Redding was the songwriter, and because radio stations were required to pay royalties only to the writers/publishers of a song and not to the artists who performed them, each time Aretha’s version of “Respect” was broadcast, royalty payments went to Mr. Redding (or his estate) and not to Aretha Franklin. (Ms. Franklin would still have received income from other sources such as record label advances, a percentage of album sales, live performances, etc.)
That sounds very unfair. Is that still the law for sound recordings today?
Yes and no. Copyright law has evolved in many ways since Aretha Franklin recorded “Respect.” But, how (and whether) artists receive performance royalties today depends a great deal on the medium by which music is transmitted to the end user.
For example, as technology and popular music changed through the years, and as performers played an increasingly important role in the commercial success of songs, Congress enacted the Sound Recording Act of 1971, which brought sound recordings within the scope of federal copyright law for the time.
However, the scope of this new federal scheme, which became effective February 15, 1972, was limited.
First, because the law was enacted in response to specific concerns about record piracy and improved methods of duplication, Congress did not give sound recording copyright owners the full bundle of rights usually associated with copyright. Instead, the Act conferred only an exclusive right to reproduce and distribute copies of a sound recording. It did not grant sound recordings a public performance right. Thus, composers and/or songwriters continued to receive royalties whenever their work was played on the radio, but the recording artist did not.
Second, the new law only provided its limited protection for sound recordings on a prospective basis, leaving sound recordings made before February 15, 1972 (including Aretha Franklin’s version of “Respect”) under the protection of a patchwork mixture of state laws.
A few years later, Congress enacted the Copyright Act of 1976 (effective January 1, 1978). This Act overhauled U.S. copyright law and remains the primary basis of copyright law in the U.S. today. The Act, however, did not really help Ms. Franklin because it retained many features of the Sound Recording Act of 1971. For example, sound recordings still did not have a public performance right, and sound recordings made before February 15, 1972 continued to be excluded from what federal protection did exist.
Since that time, has Congress made any changes to copyright law to benefit performing artists?
Yes. Two decades later, in response to the absence of a performance right for sound recordings in the Copyright Act of 1976, and an increasing fear that digital technology would supplant physical record sales, Congress enacted the Digital Performance Right in Sound Recordings Act of 1995 (DPRA). This Act amended the 1976 Copyright Act by, at long last, creating a public performance right in sound recordings. But, the right was limited to digital transmissions only.
What was the scope of this new performance right?
The DPRA addressed three categories of transmissions: broadcast transmissions (e.g. transmissions made by FCC-licensed terrestrial broadcast stations), which were exempt from the performance right; subscription transmissions, which were generally subject to a new statutory license; and on-demand transmissions, which were subject to the full exclusive performance right. A few years later, the Digital Millennium Copyright Act of 1998 amended the DPRA by expanding the scope of the statutory license to include webcasting.
The end result of this legislation was that performers and record producers could now collect a statutory royalty whenever a song they performed/produced was digitally streamed over a non-interactive digital service, for example, Internet radio webcasters (like Pandora and iHeartRadio), satellite radio services (like Sirius XM), cable and satellite television music-only services (such as Music Choice), and terrestrial radio stations streaming online music. Performers and record producers could also collect a negotiated royalty when their song aired over an interactive platform.
Unfortunately for Ms. Franklin, pre-1972 sound recordings (such as “Respect”) were exempt under the new law, and were not subject to the compulsory licensing/royalty scheme. In addition, AM/FM terrestrial radio broadcasters did not have to pay an over-the-air performance royalty for the use of the copyright in sound recordings (regardless of when the sound recording was made).
Will Aretha Franklin ever receive the royalties which should be due to her?
Not surprisingly, pre-1972 sound recording copyright owners and legacy artists were not satisfied with the DPRA and, over the next few decades, various bills were introduced to bring pre-1972 recordings into the federal copyright scheme. None were successful. However, on September 18, 2018, the Senate approved, with unanimous consent, the Music Modernization Act of 2018. The Act was signed into law on October 11, 2018.
This sea-change legislation is designed to modernize and streamline the current untenable and convoluted music licensing landscape to make it easier for rights holders to get paid. This includes closing the pre-1972 loophole exemption for digital services by creating a royalty – payable to record labels, artists and musicians – for digital performances of pre-1972 sound recordings. (Terrestrial broadcast stations are still not required to pay royalties for their over-the-air play of sound recordings).
Perhaps, finally, “A Change is Gonna Come” and the Queen of Soul will, posthumously, get the royalties and Respect she so richly deserves.
Melissa B. Paradis has more than ten years of experience in intellectual property law. She regularly advises clients on a wide range of intellectual property matters and related corporate business transactions, with a particular emphasis on domestic and international trademark and copyright searching, prosecution, enforcement, counseling and litigation. She concentrates in trademark, copyright, domain name, trade dress, and related areas of Internet, e-commerce, unfair competition and advertising law, and represents clients in administrative proceedings and in federal civil litigation.
If you have any questions regarding copyright protection or any trademark issue, please contact Melissa B. Paradis at MParadis@SmithDuggan.com or at 617-228-4457
October 23, 2018
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