Sound Recordings Act, Pub. L. No. 92-140, 85 Stat. 39 (Oct. 15, 1971).
Section 4 of the 1909 Copyright Act stated that “all the writings of an author” were subject to copyright. But sound recordings were not treated as “writings” in the early part of this century, largely based on the U.S. Supreme Court decision in White-Smith Co. v. Apollo Co. The court's narrow reading of what constituted a “writing” underlay the approach legislators took toward bills proposed between 1909 and 1971 that might have defined recorded aural works as the writings of authors. Some courts noted that the contributions of performers rose to the level of a writing, but felt an amendment to the 1909 Copyright Act was necessary. In the 1970s there were a number of cases dealing with unauthorized duplication of pre-1972 sound recordings; these cases either assumed that the performers' contributions were protectable property, or simply stated the principle with little discussion.
The 1971 Act
The Act extended federal copyright protection to sound recordings fixed on or after February 15, 1972 (the effective date of the Act), and declared that sound recordings fixed before that date would remain subject to state or common law copyright.
While the Act recognized sound recordings as “writings” deserving copyright protection, sound recordings were not granted the full array of exclusive rights afforded other authors. In particular, the public performance right was withheld.
The legislative history of the Act shows that protection was mainly intended to prohibit unauthorized copying, known worldwide as piracy of phonograms. The Act was passed to create uniform federal protection against unauthorized duplication of sound recordings rather than continue to fight piracy in fifty state courts. Subsequent U.S. court decisions affirmed the constitutionality of the Act. Passage of the Act also strengthened efforts to smooth U.S. entry into the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms.
Passage of the Act, however, did not quiet the controversy over the extent of protection that sound recordings deserve. The Recording Industry Association of America (RIAA) continued to lobby for increased rights, but others, including broadcasters represented by the National Association of Broadcasters (NAB), continued to oppose performance rights. Representatives of performers, manufacturers, publishers, jukebox interests, and motion picture-interests were also vocal. The concerned parties emphasized the adverse economic effects passage, or non-passage, of further legislation might cause them.
Additional legislation was eventually overshadowed by concern about passage of a comprehensive copyright revision bill. Congress was troubled by unsuccessful attempts to reach compromises not only on the performance rights issue, but also difficult cable and photocopying issues. The new copyright law, the 1976 Copyright Act, did not expand rights of copyright owners of sound recordings to include a public performance right. The House Report stated that:
|“||[t]he Committee considered at length the arguments in favor of establishing [sic] a limited performance right, in the form of a compulsory license, for copyrighted sound recordings, but concluded that the problem requires further study. It therefore added a new subsection (d) to the bill requiring the Register of Copyright to submit to Congress, on January 3, 1978, a report setting forth recommendations as to whether this section should be amended to provide for performers and copyright owners . . . any performance rights in copyrighted sound recordings.||”|
The study that Congress required the Copyright Office to undertake was issued in 1978. It placed the Copyright Office squarely in the corner of those advocating public performance rights for sound recordings. That recommendation was reiterated by the Office in a report it issued to Congress in October 1991 titled “Copyright Implications of Digital Audio Transmission Services.”
- 209 U.S. 1 (1908) (full-text). The Court held that since the perforations on a piano roll were not visually intelligible, the recording was not a copy of the underlying music, and the author of the composition had no control over the use of such a recording.
- See Barbara Ringer, “The Unauthorized Duplication of Sound Recordings” (Study No. 26) in Copyright Law Revision, Studies prepared for the Comm. on Patents, Trademarks and Copyrights of the Comm. on the Judiciary, U.S. Senate, 86th Cong., 2d Sess. (Comm. Print 1961). Attempts to provide extended protection for sound recordings occurred frequently in the form of proposed legislation. See discussion of legislative history at 28 et seq. (“Performance Rights in Sound Recordings,” Subcomm. on Courts, Civil Liberties, and the Administration of Justice, House Comm. on the Judiciary, 95th cong., 2d Sess. (1978). (Comm. Print No. 15).
- See, e.g., Waring v WDAS Broadcast. Station, Inc. 327 Pa. 433, 194 A. 631 (1937); RCA Mfg. Co. v. Whiteman, 114 F.2d 86 (2d Cir.) (full-text), cert. denied, 311 U.S. 712 (1940); Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657 (2d Cir. 1955) (full-text).
- See, e.g., United Artists Records, Inc. v. Eastern Tape Corp. 19 N.C. App. 207, 198 S.E.2d 452 (N.C. App. 1973) (full-text); Mercury Records Productions, Inc v Economic Consultants, Inc., 64 Wis.2d 163, 218 N.W.2d 705 (1974) (full-text).
- Legislative reports on the Act made clear that it was directed only at tape piracy and did not “encompass a performance right so that record companies and performing artists would be compensated when their records were performed for commercial purposes.” H.R. Rep. No. 487, 92nd Cong., 1st Sess. 3 (1971). Piracy was addressed by the United States on an international scope by its ratification of the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms in 1971.
- H.R. Rep. No. 487, 92nd Cong., 1st Sess. 2 (1971).
- See Shaab v. Kleindienst, 345 F. Supp. 589 (D.D.C. 1972) (full-text) (sound recordings qualify as writings of an author that may be copyrighted); Goldstein v. California, 412 U.S. 546 (1973) (full-text) (the term “writings can be broadly interpreted by Congress to include sound recordings).
- H.R. Rep. No. 1476, 94th Cong., 2d Sess. 106 (1976).
- “Performance Rights in Sound Recordings,” Subcomm. on Courts, Civil Liberties, and the Administration of Justice, House Comm. on the Judiciary, 95th Cong., 2d Sess. (1978) (Comm. Print No. 15).
- Statement of Marybeth Peters, Register of Copyrights, before the Subcomm. on Courts and Intellectual Property Committee on the Judiciary, U.S. House of Representatives, 104th Cong., 1st Sess. (June 28, 1995), "Digital Performance Right in Sound Recordings Act of 1995 (H.R. 1506)" (full-text).