292 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 16:289
A. The Public Performance Right for Sound Recordings
Sound recordings were not given federal copyright protection until 1972.
11
Sound recordings should not be confused with musical works, which constitute
a separate copyrighted work.
12
A sound recording is the recorded sound,
whereas a musical work is the authorship of a song.
13
Stephen E. Demos, The Fair Pay Fair Play Act of 2015: Does Congress Spot-Ify a Solution for
the Music Market?,12J.B
US.& TECH. L. 73, 79 (2016). For example, Jimi Hendrix originally owned
the sound recording copyright to “All Along the Watchtower,” but Bob Dylan owned the musical works
copyright. Justin Jacobson, Breaking Down Copyrights in Music,T
UNECORE (Dec. 8, 2016), http://www.
tunecore.com/blog/2016/12/breaking-copyrights-music.html [https://perma.cc/6VG7-BXVA].
Under the Copyright Act
of 1976, sound recordings were not given the same scope of exclusive rights
and protections as musical works.
14
Sound recordings were protected from
reproduction and distribution of the copyrighted work, such as selling pirated
CDs.
15
Congress initially rejected granting a public performance
16
right to
sound recordings on the grounds that, among other things, enforcing the right
would be too difficult and the publicity from unrestricted airplay actually
benefitted the rights holders.
17
In 1995, the Copyright Act was amended in anticipation of the impending
digital revolution and its potential effect on album sales.
18
Congress passed the
Digital Performance Right in Sound Recordings Act of 1995, giving sound
recordings a limited public performance right in digital media.
19
The Digital
Performance Right in Sound Recordings Act separated interactive digital ser-
vices from non-interactive digital services.
20
In 1998, Congress passed the
Digital Millennium Copyright Act, amending the scope of the public perfor-
mance right to include sound recordings in certain digital media.
21
Despite these
new provisions, digital music piracy has continued to plague the music industry
11. Act of Oct. 15, 1971, Pub. L. No. 92-140, 85 Stat. 391 (1971); Stasha Loeza, Out of Tune: How
Public Performance Rights Are Failing to Hit the Right Notes,31B
ERKELEY TECH. L.J. 725, 735 (2016).
The sound recordings were protected by state laws. Loeza, supra, at 735 n.96.
12. See J
ULIE E. COHEN ET AL., COPYRIGHT IN A GLOBAL INFORMATION ECONOMY 410 (4th ed. 2015).
13.
14. Loeza, supra note 11, at 735.
15. Demos, supra note 13, at 78.
16.
17 U.S.C. § 101 (2010) (“To perform or display a work ‘publicly’ means—(1) to perform or
display it at a place open to the public or at any place where a substantial number of persons outside of
a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise
communicate a performance or display of the work to a place specified by clause (1) or to the public, by
means of any device or process, whether the members of the public capable of receiving the
performance or display receive it in the same place or in separate places and at the same time or at
different times.”). For example, playing a song on the radio would be a public performance. Jeffrey S.
Becker et. al., The Fair Play, Fair Pay Act of 2015: What’s at Stake and for Whom?,32E
NT.&SPORTS
LAW. 5, 5–6 (2015).
17. Loeza, supra note 11, at 735 (citing Arista Records, LLC v. Launch Media, Inc., 578 F.3d 148,
152 (2d Cir. 2009)).
18. Id. at 737.
19. Id. at 737; see Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39,
109 Stat 336.
20. Loeza, supra note 11, at 737; see also 17 U.S.C. § 114(j)(7).
21. Loeza, supra note 11, at 739; see also Digital Millennium Copyright Act, Pub. L. No. 105-304,
112 Stat 2860 § 405 (1998).