Late last month a decision was handed down in the Florida Supreme Court that should make anyone creating content on new content delivery systems very nervous. The court had been hearing a case brought by two members of the rock band The Turtles regarding payment of performance royalties for their recordings being played on SiriusXM. SiriusXM and Pandora had stopped paying performance royalties to artists and record labels for recordings made prior to 1972, because sound recordings were only recognized by federal copyright law in 1972. Last week, Florida ruled that those recordings were not eligible for copyright protection because they were not explicitly covered. At least in Florida, the law does not recognize an exclusive right of public performance for pre-1972 recordings.
Why should this make other content creators nervous? Because that public performance or display right existed for every creative product that WAS covered by the copyright code at the time. The makers of sound recordings had good reason to assume that the law would extend similar coverage to their products. Technology moves a lot faster than the government; if no one could make new products until they were explicitly granted protection by copyright law then creative innovation would grind to a halt before each update to the law. And would be grinding to a halt now. The last significant update to US copyright law was in 1998 with the Digital Millennium Copyright Act, large portions of which were written closer to 1995. Let’s all sit for a second and ponder all the ways we consume creative content now that did not even exist in 1995 OR 1998 and which are likely not explicitly covered by copyright law. I’ll even give you an example to get started: At my day job, I work for a company that collects performance royalties from internet radio stations for artists and record labels. Several times a week I get calls from people who make podcasts asking if they can license through us. They can’t, because there’s no provision for “podcast” usage in copyright law. Any use of music on a podcast means the podcast creator has to go ask specific permission from the owner of the sound recording, and that owner can choose to charge whatever they want for it. A radio show that someone can download to a portable device and listen to at will OR stream directly through a website was unheard of when the last update was made. That last update was written over a full decade before smartphones were even available. This isn’t even touching on even more cutting-edge creative endeavors like augmented reality games, virtual reality games, hologram performances, etc. All of these rely on the understanding that they’ll be granted similar legal protections to creative works already in existence. What Florida is saying is that they might not be.
This story isn’t over yet, though. There were several cases in state supreme courts concurrently, and New York and California are still ongoing. However, this decision in Florida could be bad news for those cases, or we could be looking at a much longer dispute. I know that in some internet circles it’s trendy to consider the concept of copyright entirely outdated, but I can’t back the idea that creators should lose rights to their creation just because they want to display it to others. For personal reasons, in that both of my jobs revolve around the concept of people paying to use or access content somehow, and for philosophical ones. Creative works may be a common good, but they do represent the labor of actual people and those people should be fairly compensated for their labor. Maybe it’s hard to feel that tug when we’re talking about songs recorded almost 50 years ago, but length of copyright protection is an entirely different discussion. Pay artists. Pay them for their work and the time they put into it because it brings joy to your life and gives you a way to connect with others and because it’s just the right thing to do. Pay the companies that fund artists so they continue to pay those artists and take chances on them, even if you feel slightly less virtuous about it. If you are an artist and you’re creating, know that you deserve to be compensated for your work when it brings joy to others. If you choose not to charge for it, I salute you, but I’ll absolutely be on your side if you want to. Hopefully, California or New York gets this right, but in the meantime, if you’ve got some favorite pre-‘72 artists who deserve love, feel free to share them below.