Fairness in Radio: A Performance Right for Sound Recordings
Recorded music made in the United States has both great cultural significance and enormous economic importance. It is recognized, bought, broadcast and enjoyed all over the world. The performers who make those recordings—whether they are the recording artists whose names appear on the recording or the session artists whose “background” performances are integral to its style and quality—work hard to create recordings that have artistic merit and commercial value. Yet these talented and hardworking performers have long been denied compensation for one of the most profitable commercial uses of their work: the broadcast of recordings on AM/FM, terrestrial radio.
Recording artists, musicians and vocalists in virtually all technologically advanced countries receive a royalty when their recorded performances are broadcast on radio. The United States stands alone in denying such an income stream to performers. The U.S. Copyright Act should be amended to correct this gap and allow U.S. performers to receive fair compensation for the use of their work on AM/FM, terrestrial radio.
The U.S. Copyright Act Does Not Fully Protect Recorded Music
Every other copyrightable work that can be performed—plays, movies, literary works and musical compositions—enjoys a performance right under the Copyright Act. This means it cannot be performed without permission and compensation. But when sound recordings were granted copyright protection in 1972, they were denied a performance right at the request of the radio industry.
The contrast between the treatment of sound recordings and other copyrighted works is stark. Because musical compositions enjoyed a performance right from the inception of the Copyright Act, AM/FM radio must pay songwriters for broadcasting recordings of their songs. This is entirely appropriate. But because the sound recording has no performance right, the musicians and vocalists who bring the song to life are not compensated. The greatest jukebox hit of all time, Patsy Cline’s recording of “Crazy,” demonstrates the difference. Willie Nelson receives a royalty every time Patsy Cline's recording of "Crazy" is played in public because he wrote the music and the lyrics to the song. But Patsy Cline, the Jordanaires and the inimitable session musicians who created the great recording receive nothing, and neither does Decca Records.
The U.S. radio industry has benefited from the creative work of songwriters and performers. It compensates songwriters, as it should. But it has never compensated performers. This is wrong, and should be corrected.
U.S. Law Results in Performers Being Denied Foreign as Well as Domestic Royalties
Performers are not only denied compensation for the use of their work by AM/FM, terrestrial radio broadcasters in the United States. They also have lost—and continue to lose—millions of dollars of foreign performance royalties collected for the use of their work overseas, because foreign collecting societies refuse to pay royalties to U.S. performers and companies as long as U.S. law lacks a reciprocal performance right.
The United States is virtually the only developed country in which recording performers and owners do not have a performance right. The lack of a performance right in sound recordings puts the United States in the company of such nations as China, Iran, Rwanda and Uganda.
AM/FM, Terrestrial Radio Enjoys an Unfair Competitive Advantage Over Digital Internet and Satellite Radio
In 1994, Congress enacted the Digital Performance Right in Sound Recordings Act (DPRA), which created a “digital performance right.” The DPRA requires digital music services such as Internet and satellite subscription radio to pay performers and copyright owners for the use of their recordings. The creation of a digital performance right was a step in the right direction, and digital performance royalties are developing into an important new income stream for performers.
But under current law, AM/FM, terrestrial radio has an unfair competitive advantage over the new digital services because it has a free pass to use recorded music while the digital services must pay. Moreover, as AM/FM, terrestrial radio stations transition to digital formats, they will continue to be able to compete unfairly with Internet and satellite subscription radio because the DPRA exempts traditional AM/FM, terrestrial radio stations from the digital performance right even when they broadcast in a digital rather than an analog format.
Performers Should Be Compensated for All Uses of Their Music
The broadcast industry always has tried to justify the lack of a performance right by arguing that radio airplay promoted the sale of recorded music. Of course, in reality radio stations sold advertising, not music—they simply used music to attract listeners whose attention they sold to advertisers. But promotional effects don’t excuse payment even where they exist. Movies promote book sales, but producers still must compensate authors, for example. And in any event, as music consumption changes from purchasing CDs to listening to music on free and subscription music services, it becomes critically important to the economic survival of performers that they be compensated for all uses of their music.
The AFL-CIO Calls for the Enactment of S. 2500 and H.R. 4789
In this time of business and technological transformation in the music industry, the longstanding injustice of unequal copyright treatment for sound recordings should be corrected. The AFL-CIO calls for the swift enactment of the Performance Rights Act, which has been introduced in the House (H.R. 4789) and the Senate (S. 2500), to amend the Copyright Act to include a full performance right for sound recordings. There is no doubt that all recording artists—royalty artists and session performers—create works of great value. It is only fair that they share in the revenues generated by their hard work and talent.
Tables
1. Organisation for Economic Co-operation and Development (OECD) Countries
that DO Pay a Performance Right
| Austria | France | Japan | Portugal |
| Australia | Germany | Luxembourg | Slovakia |
| Belgium | Greece | Mexico | South Korea |
| Canada | Hungary | Netherlands | Spain |
| Czech Republic | Iceland | New Zealand | Sweden |
| Denmark | Ireland | Norway | Switzerland |
| Finland | Italy | Poland | Turkey |
| United Kingdom |
2. Organisation for Economic Co-operation and Development (OECD) Countries
that DO NOT pay a Performance Right
| United States |
3. The Company We Keep in Not Compensating Performers for Radio Use
| Bangladesh | Micronesia | Singapore |
| China | Niger | Sri Lanka |
| Congo | Oman | Sudan |
| Gabon | Qatar | Uganda |
| Iran | Rwanda | United States |
| Kuwait | Seychelles | Zimbabwe |
4. Copyrightable Works That Enjoy a Full Performance Right Under U.S. Law
| Literary Works | (e.g., The Catcher in the Rye) |
| Musical Works | (e.g., words and music to White Christmas) |
| Dramatic Works | (e.g., Death of a Salesman) |
| Pantomimes & Choreography | (e.g., dances of Alvin Ailey or Twyla Tharp) |
| Motion Pictures | (e.g., Chinatown) |
5. Copyrightable Works That DO NOT Enjoy a Full Performance Right
| Sound Recordings |