[Un]happy Together: Why the Supremacy Clause Preempts State Law Digital Performance Rights in Radio-Like Streaming of Pre-1972 Sound Recordings

Lovers of the music of Frank Sinatra, Elvis Presley, Etta James, and hundreds of other recording artists whose records were made before February 15, 1972, may soon have a hard time hearing these great artists on any satellite or Internet radio service. Recently, two federal district courts have found that state laws were violated when satellite radio broadcaster Sirius XM Radio included pre-1972 sound recordings in its broadcasts without the owners’ permission, but these courts did not consider-–and the parties did not argue-–how the Supremacy Clause applies to those state law claims. This article argues that state laws purporting to grant digital performance rights to pre-1972 sound recordings are necessarily preempted by the Supremacy Clause of the United States Constitution. This article contends that enforcement of those state laws would create a serious obstacle to “the accomplishment and execution of the full purposes and objectives of Congress” in enacting the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”). The DPRA reflects Congress’ careful balancing of interests and recognition of the need for an easily administrable system of licensing, which Congress established through a complex and comprehensive compulsory licensing system. The Supremacy Clause thus preempts all state laws purporting to require licenses for digital performance rights or payment of royalties for the use of such rights by Internet or satellite radio stations beyond what is expressly provided for in the compulsory licensing system established by the DPRA, because permitting countless owners of individual pre-1972 sound recordings to assert claims for royalties and other damages outside of the compulsory licensing system would frustrate Congress’ goals in establishing that system. Part I of this article provides a brief overview of the federal rights at issue and the (very) brief history of performance rights in sound recordings, noting the absence of any express state law recognition of a performance right in sound recordings throughout most of the 20th century (other than short-lived decisions in two states over seventy-five years ago that focused on notices stamped on records purporting to prohibit a purchaser’s use of sound recordings on radio rather than a true performance right). It is only in very recent cases that courts in New York and California have recognized state law performance rights. However, they did so without considering Supremacy Clause preemption or how any state law performance rights might conflict with the federal statutory compulsory license regime established by the DPRA. Part II of the article explains the relevant legislative history and provisions of the DPRA governing the comprehensive licensing system. That statutory license and rules governing it were established to provide an efficient mechanism for digital Internet and satellite radio services to operate in compliance with their legal obligations. In Part III, the article explains Supremacy Clause doctrine and distinguishes the Supreme Court’s opinion in Goldstein v. California, which rejected a Supremacy Clause challenge to a state record piracy law in 1973. It demonstrates why neither the Court’s decision in Goldstein nor the language of the Copyright Act’s express preemption clause, which exempts state laws governing pre-1972 sound recordings from statutory preemption, precludes conflict preemption under the Supremacy Clause in the context of digital radio services that are subject to the federal compulsory license. Part IV of the article acknowledges that preemption of state law protection for digital performances of pre-1972 sound recordings raises equitable concerns, as it leaves some of this nation’s most treasured musical artists uncompensated for use of their works by Internet and satellite streaming services while the authors of more current works are compensated. However, given the delicate balancing that has gone into Congress’ recognition of a limited digital performance right and creation of a compulsory statutory licensing system, any remedy for the inequity to owners of pre-1972 sound recordings must be left to Congress. Allowing individual courts in individual states to craft a patchwork of inconsistent remedies would disrupt the balance struck by Congress and interfere with the functioning of the compulsory license system for digital sound recording performances. This is a result that the Supremacy Clause does not permit