Happy Together? The Uneasy Coexistence of Federal and State Protection for Sound Recordings

Federal copyright law provides a digital performance right that allows owners of sound recordings to receive royalties when their works are transmitted over the Internet or via satellite radio. However, this federal protection does not extend to pre-1972 sound recordings, which are excluded from the federal copyright system and instead left to the protections of state law. No state law explicitly provides protection for any type of transmission, a situation the owners of pre-1972 sound recordings find lamentable. These owners are therefore attempting to achieve such protection by various means. In California, they filed a lawsuit, claiming that they already had such a right under existing general statutes (the lawsuit succeeded in the District Court). In Tennessee, they instead attempted to make the change legislatively, introducing a bill that would explicitly grant the desired right (the bill failed). Both approaches, however, suffer from the same fatal flaw: They are preempted by federal law. First, although they fall outside the Copyright Act’s explicit preemption provision, they are nevertheless preempted under ordinary conflict preemption principles because they conflict with one of the primary goals of the federal copyright system: granting consistent nationwide protection rather than a patchwork of state protections. Second, they violate the Dormant Commerce Clause because they interfere with interstate commerce. Thus, state law cannot provide the remedy that the owners of pre-1972 sound recordings seek. Their concerns, however, should not be dismissed. The exclusion of pre-1972 sound recordings from the federal system does deprive the owners of such recordings of royalties received by similarly situated owners whose recordings happen to have been made after that date. Because state law cannot remedy the problem, federal law must. Pre-1972 sound recordings should be brought into the federal system, on essentially the same terms as other works from the same era that are already protected by federal copyright