Musical Copyrights as a Rare-instance of Bipartisanship: The House passes H.R. 1551 the Music Modernization Act - Fordham Intellectual Property, Media & Entertainment Law Journal
25038
post-template-default,single,single-post,postid-25038,single-format-standard,ajax_fade,page_not_loaded,,select-theme-ver-3.3,wpb-js-composer js-comp-ver-5.5.2,vc_responsive
 

Musical Copyrights as a Rare-instance of Bipartisanship: The House passes H.R. 1551 the Music Modernization Act

Musical Copyrights as a Rare-instance of Bipartisanship: The House passes H.R. 1551 the Music Modernization Act

In an era when the two major political parties and their respective members cannot even agree on basic facts1, it was very encouraging to see the Senate make progress on a serious reform effort this fall when they passed H.R. 1551, the Music Modernization Act (“MMA”), in a unanimous vote. 2 Interestingly, the area where Congress exhibited such broad consensus is not one that you might expect, such as infrastructure, military, or foreign policy; instead, it was musical copyright reform.

Understanding the potential changes that H.R. 1551 would usher in—and how it differs from the previously passed House version—requires a brief introduction to Federal musical copyright law. Copyrights for music come in two forms: mechanical copyrights, which go to the songwriter or composer, and sound recording copyrights. 3 It is the latter category that has caused much of the controversy that the MMA seeks to repair. Since 1995, a system has been in place to provide royalties from digital streaming services who want to play recordings made after 1972. However, there was no Federal system in place to protect recordings made before 1972 from being used by digital streamers without providing royalty payments.4 Furthermore, although pre-1972 recordings are theoretically protected under state law, the state law protections are not uniform and, as a recent Congressional Report referred to it, “a patchwork of uneven state law protections.”5

Demonstrating a high level of bipartisan agreement on this reform, both the House and Senate have now passed bills that fix the aforementioned disparity between sound recordings before and after 1972. Both chambers’ versions would also create a new agency to collect and pay digital streaming royalties and guarantee royalties to producers and sound engineers under Federal law for the very first time.6

The only significant area where the two chambers disagree is the length of time in which those pre-1972 sound recordings will maintain copyrighted status. H.R. 5447.,7 which passed the House of Representatives on a 415-0 vote this April, 8 would extend protection of those pre-1972 sound recordings until 2067, the date when pre-existing Federal law mandates that Federal copyright law preempts state law.9 In contrast, the new Senate version of the law would create a tiered system where works published between 1957-1972 would have protection until 2067, works published between 1947-1956 would get 110 years of protection, and works published between 1923-1946 would get 95 years, which is the same length of time that other works, such as books and movies, typically receive.10 Although the Senate proceeded to name this bill in honor of the soon-to-be-departing Orrin Hatch,11 it was actually the work of Senator Ron Wyden that resulted in this change of language, shortening the time in which sound recordings from 1923-1956 would be treated so that they would not stretch significantly past the 95 year deadline that apply to other forms of art.12

Importantly, both chambers’ bills take the important step of equalizing how sound recordings are treated, regardless of whether they were created before or after 1972. However, the Senate’s version is preferable because it strikes a better balance between protecting the value of copyright holders’ rights and the rights of those who wishes to use the works in the public domain. It provides fairer standards for streaming companies, consumers, and owners of pre-1972 copyrighted sound recordings alike.13 Therefore, the House should continue this inspiring spirit of bipartisan (and bicameral) reform and pass H.R. 1551 before the end of this session.14

Update: Since the initial writing of this article, the House has passed the Senate version of the bill. The final step is President’s Trump signature which he is expected to sign.15


  1. See John Laloggia, Republicans and Democrats agree: They can’t agree on basic facts, Pew Research Center (Aug. 23, 2018), http://www.pewresearch.org/fact-tank/2018/08/23/republicans-and-democrats-agree-they-cant-agree-on-basic-facts/. [https://perma.cc/8LEU-THVD]

  2. Ed Christman, Music Modernization Act Passes in Senate With Unanimous Support, Billboard (Sept. 18, 2018), https://www.billboard.com/articles/business/8475876/music-modernization-act-passes-senate-unanimous-support. [https://perma.cc/V2LQ-MX2P]

  3. Timothy B. Lee, Senate passes copyright bill to end 140-year protection  for old songs, ARS Technica (Sept. 19, 2018, 2:29 PM), https://arstechnica.com/tech-policy/2018/09/senate-passes-copyright-bill-to-end-140-year-protection-for-old-songs/. [https://perma.cc/2N9F-Z7GH]

  4. Kyle Jahner, Senate Music Copyright Bill Has Supermajority, but Fights Remain, Bloomberg: IP Law, (Aug. 24, 2018, 3:50 PM),  https://www.bloomberglaw.com/product/ip/document/XCKNR3O4000000?bna_news_filter=ip-law&jcsearch=BNA%200000016567b3dbcca5e767b70cc20002#jcite. [https://perma.cc/DA9Q-CMYN]

  5. Kevin J. Hickey, Cong. Research Serv., LSB10181, The Music Modernization Act: Extending Copyright Protection to Pre-1972 Sound Recordings 3 (2018). https://fas.org/sgp/crs/misc/LSB10181.pdf. [https://perma.cc/KF7H-6EDM]

  6. Paul Resnikoff, The House of Representatives Unanimously Approves the Music Modernization Act, 415-0, Digital Music News, (Apr. 25, 2018), https://www.digitalmusicnews.com/2018/04/25/u-s-house-representatives-music-modernization-act/; Sam Barsanti, Senate passes Music Modernization Act, paving the way for big royalty changes, A.V. Club, (Sept. 18, 2018, 7:53 PM), https://news.avclub.com/senate-passes-music-modernization-act-paving-the-way-f-1829155740. [https://perma.cc/V85V-DGCA]

  7. H.R. 5447, 115th Cong. (2018), http://src.bna.com/Bn8. [https://perma.cc/EM9X-LY8H]

  8. Resnikoff, supra note 5.

  9. See 17 U.S.C. § 301(c) (2012).

  10. Lee, supra note 3.

  11. Senator Hatch Office (@SenOrrinHatch), Twitter (Sept. 18, 2018, 4:44 PM), https://twitter.com/senorrinhatch/status/1042197730330861568?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwgr%5E373939313b636f6e74726f6c&ref_url=http%3A%2F%2Ffox17.com%2Fnews%2Flocal%2Fmusic-city-songwriters-celebrate-historic-legislations-senate-passage. [https://perma.cc/4M76-9VRL]

  12. cf. Lee, supra note 3.

  13. cf. Robert Levine, As Music Modernization Act Enters Senate, Anti-Copyright Activists Come Out Of The Woodwork (Column), Billboard, (May 24, 2018),  https://www.billboard.com/articles/business/8457721/anti-copyright-activists-music-modernization-act-senate-column. [https://www.bna.com/house-expected-clear-n73014482663/]

  14. Kyle Jahner, House Expected to Clear Music Copyright Bill Soon, Bloomberg: IP Law, (Sept. 19, 2018), https://www.bna.com/house-expected-clear-n73014482663/. [https://perma.cc/JQX7-VCAQ]

  15. Mariella Moon, US bill modernizing music royalties only needs the President’s signature, Engadget (Sept. 26, 2018), https://www.engadget.com/2018/09/26/music-modernization-act-white-house/. [https://perma.cc/JQX7-VCAQ]

Elliot Fink

Elliot Fink is an IPLJ staffer who was born in Baltimore, Maryland and attended college at the University of Michigan - Ann Arbor where he majored in History. Moving to Washington D.C. after college, Elliot worked in business development and politics in various roles there and later worked in Human Resources in New York City before law school. Elliot is currently in his second year at Fordham law with wide ranging interests in litigation, employment, and public policy, among numerous other topics and was honored to receive the Mary Daly Scholar award and Dean’s List for the 2017-2018 academic year.