Guerrilla Radio: Has the Time Come for a Full Performance Right in Sound Recordings?

Musicians and songwriters occupy a unique place in society as purveyors of composition and expression that impart an intangible benefit to society. Understanding the value of Science and useful Arts, the Founders provided Constitutional protection for individuals spending time, money, and energy pursuing creative endeavors. Music defines generations and pivotal moments in history, and has rightfully taken its place at the forefront of human expression. When music began reaching the masses in the early twentieth century, both record labels and radio, even in its infancy, helped propel artists to the national spotlight. Johnny Cash, Ray Charles, and Pearl Jam all owe their success to the efforts and collaborations of radio and label executives--and of course their own talents. The relationship between artists, labels, and radio has not always been symbiotic, especially on the issue of compensation, and the advent of the Internet has helped matters little. The fight over profit allocation between these key players in the music industry is once again on display. The re-introduction in Congress of the Performance Rights Act raises issues about the appropriate extent of protection for a performance right to copyright owners of sound recordings. Artists and labels want radio to compensate them for their talents and time; radio says traditional broadcasting does not threaten record sales and serves as free advertising. Though numerous pushes against broadcasters for this performance right have failed, it is a recurring issue unlikely to disappear in the future. This Note examines the history of copyright protection for sound recordings and other musical works in the United States. It begins by examining the statutory development of copyright protection for musical compositions and sound recordings, and the nature of those compensation schemes. The Note then introduces the Performance Rights Act, and analyzes the potential reasons for and effects of the Acton radio, record labels, and artists, as well as the changing scope of copyright protection in both traditional, terrestrial radio and digital transmissions. Finally, this Note suggests Congress should pass the Performance Rights Act, but should consider ways to minimize negative financial implications for radio, and align the bill with the goals of American copyright law