Congress passed the first federal copyright act in 1790. That act did not provide express protection for musical compositions (or "musical works" in the parlance of the current Copyright Act), though such works could be registered as "books." Then, in 1831, Congress amended the law to provide expressly that musical works were subject to federal copyright protection.
The 1831 amendment, however, provided owners of musical works with only the exclusive right to reproduce and distribute their compositions, i.e., to print and sell sheet music, because, "[a]t the time, performances were considered the vehicle by which to spur the sale of sheet music." In 1897, Congress expanded the rights of music owners to include the exclusive right to publicly perform their works.
With the 1909 Copyright Act, federal copyright protection for musical works was further extended by adding an exclusive right to make "mechanical" reproductions of songs in "phonorecords" — in those days, piano rolls, but in the modern era, vinyl records and CDs. At the same time, Congress limited the new phonorecord right by enacting a compulsory license for this use.
In 1995, Congress confirmed that an owner's exclusive right to reproduce and distribute phonorecords of musical works extends to digital phonorecord deliveries ("DPDs") — that is, the transmission of digital files embodying musical works.
Over time, new technologies changed the way people consumed music, from buying and playing sheet music, to enjoying player pianos, to listening to sound recordings on a phonograph or stereo system. But it was not until 1971, several decades after the widespread introduction of phonorecords, that Congress recognized artists' sound recordings as a distinct class of copyrighted works that were themselves deserving of federal copyright protection. This federal protection, however, was limited to sound recordings fixed on or after February 15, 1972, and, until more recently, protected only the exclusive rights of reproduction, distribution, and preparation of derivative works. No exclusive right of public performance was granted. Then, in 1995, Congress granted sound recording owners a limited public performance right for digital audio transmissions — though that right was made subject to compulsory licensing under sections 112 and 114 of the 1976 Copyright Act.
- Act of May 31, 1790, ch. 15, 1 Stat. 124.
- See Clayton v. Stone, 5 F. Cas. 999, 1000 (C.C.S.D.N.Y. 1829) (No. 2872); I. Trotter Hardy, "Copyright and New Use Technologies," 23 Nova L. Rev. 659, 664 (1999).
- Act of Feb. 3, 1831, ch. 16, 4 Stat. 436.
- See Maria A. Pallante, "ASCAP at 100," 61 J. Copyright Soc'y 545, 545‐46 (2014).
- Act of Mar. 3, 1897, ch. 392, 29 Stat. 694; see also Zvi S. Rosen, "The Twilight of the Opera Pirates: A Prehistory of the Exclusive Right of Public Performance for Musical Compositions," 24 Cardozo Arts & Ent. L.J. 1157, 1158‐59 (2007).
- Digital Performance Right in Sound Recordings Act of 1995 ("DPRSRA"), Pub. L. No. 104‐39, §4, 109 Stat. 336, 344‐48; see also 17 U.S.C. §115(c)(3)(A).
- See U.S. Copyright Office, Federal Sound Recordings Report); Michael Erlinger, Jr., "An Analog Solution in a Digital World: Providing Federal Copyright Protection for Pre‐1972 Sound Recordings," 16 UCLA Ent. L. Rev. 45, 57‐58 (2009).
- Pub. L. No. 92‐140, 85 Stat. 391 (1971) ("Sound Recording Act of 1971").
- DPRSRA §§ 2, 3. The digital performance right is also subject to a number of exceptions, including for transmissions to or within a business for use in the ordinary course of its business, for nonsubscription broadcast transmissions, and for certain geographically limited retransmissions of nonsubscription broadcast transmissions. 17 U.S.C. §114(d)(1)(A), (B), (C)(ii), (C)(iv).
- "Copyright protection" section: Copyright and the Music Marketplace, at 16-18.