ACCESS to Recordings Act Leaves Musical Trailblazers in the Dust

Ross Marchand

June 18, 2018

Too often, trailblazing musical artists are robbed of their royalties – and their retirements – due to a long-abused quirk in intellectual property law. In particular, artists behind recordings made before February 15, 1972 have been the victims of some digital services’ questionable legal interpretations. In a welcome development, The Compensating Legacy Artists for their Songs, Service, Important Contributions to Society (CLASSICS) Act, included in the larger Music Modernization Act (MMA), remedies the problem by firming up federal language to give “oldie” artists like Darlene Love and Tony Bennett the same protections as their later peers. The MMA unanimously passed the House 415-0 in April and is now in the hands of the Senate Judiciary Committee.

Unfortunately, different legislation proposed in the Senate threatens to subvert the promise of the MMA. Senator Ron Wyden (D-OR) recently introduced the “Accessibility for Curators, Creators, Educators, Scholars, and Society to Recordings Act” (“ACCESS to Recordings Act”), which amounts to a weakening and, in fact, an outright taking of artists’ intellectual property rights. By kyboshing the ACCESS to Recordings Act and supporting the MMA, lawmakers can safeguard the rights and legacy of countless of America’s most cherished musical artists. 

There is no question that current law is unnecessarily complicated and confusing, owing in large part to the piecemeal way in which rights were guaranteed over the years. While copyright law has been around since the time of the founding fathers, it was not until 1971 that Congress finally provided a federal copyright to owners of sound recordings. That law – enacted on February 15, 1972 – and the subsequent Copyright Act of 1976 left recordings made before that date to state law, forming the basis of our current federal/state dichotomy for sound recording protection. Unfortunately, some digital services fail to acknowledge the state protections for “pre-72” recordings. Thus, to artists that reached their heyday fifty years ago, production timing can make all the difference between getting paid for their work or not. 

With its inclusion of the CLASSICS Act, the MMA addresses this injustice by preempting state law and bringing pre-72 recordings under federal law.  It clarifies and simplifies the licensing process by applying the already-existing compulsory license and all the rights and limitations afforded to post-72 recordings. In one stroke, this law benefits digital music services, artists and musicians, sound recording owners, libraries and archives, and music fans everywhere.

While Senator Wyden’s ACCESS to Recordings Act also brings pre-72 recordings under federal law, it simultaneously and inexplicably reduces the current term of protection afforded to these pre-72 artists by years, if not decades. That’s not only morally wrong, it’s a clear violation of the Takings Clause under the Fifth Amendment to the Constitution. Since the federal government is barred from taking private holdings “for public use without just compensation,” replacing pre-72 artists’ current term of (state) protection through 2067 with a shorter term under federal law would be unlikely to withstand a legal challenge. 

By passing the MMA, lawmakers can bring some much-needed clarity and assurance to the system without abridging artists’ current rights. The ACCESS to Recordings Act, on the other hand, sets the stage for weaker protection and opens the floodgates to costly lawsuits and government reimbursement for an unconstitutional taking, borne by taxpayers.