Wednesday marks the 45th anniversary of a little-known but increasingly crucial musical divide. If you’ve ever listened to a decades-old recording on the Internet, a satellite radio station, or a remastered CD, you may have unwittingly brushed up against the date of Feb. 15, 1972. How? For starters, look to the cassette tape. First sold in 1964, cassettes revolutionized music consumption — and the task of pirating recordings. In response, Congress passed the Sound Recording Amendment of 1971.
One notable lacuna in copyright law at the time was the lack of a specific federal copyright for sound recordings, which had been protected only by inconsistent state laws or untested notions of common law. The 1971 Amendment finally put recordings under federal copyright, but only recordings made after Feb. 15, 1972.
For recordings prior to 1972, Congress deferred to state law, only specifying that, come the year 2067, they would enter into the public domain. And when the Copyright Act of 1976 was enacted, the 1972 demarcation (and 2067 expiration) remained. All of which might have remained a legal quirk, except for one invention: the Internet. Once music began to stream over the Web, that 1972 boundary suddenly became very important.
Record labels and performers have never collected royalties when their records were broadcast on terrestrial radio: Only songwriters get a royalty (paid through a rights organization like ASCAP or BMI). In 1995, Congress decreed that non-terrestrial radio stations — Internet stations (like Pandora) or satellite radio (like Sirius XM) — had to pay royalties to performers and labels, too. But the services argued that since it was federal legislation, it only applied to recordings under federal copyright protection. In other words, like terrestrial radio stations, they could play those pre-1972 recordings without having to pay the additional royalties. The recording industry, eager to generate more revenue from their back catalogs, began to litigate.
In the past five years, a number of court cases have tried to sort things out. At first, labels took the lead, with a 2014 decision against Sirius XM decreeing that service’s broadcasts of pre-1972 recordings did, in fact, require payments to the recording-copyright holders, not just the songwriters. An appellate court overturned that.
But each decision seems to introduce new complications: Last summer, for instance, another court let a broadcaster off the hook, but on the curious grounds that a post-1972 remastering of a pre-1972 recording somehow shifts its copyright from the older state copyright laws into the newer federal one. More lawsuits and appeals seem inevitable. Meanwhile, the already tricky three-legged race among broadcasters, labels, and the tangled legal status of historical recordings will continue to trip over that Feb. 15, 1972 line.