Music Modernization Act Part II

Continuing our coverage of the Music Modernization Act (MMA), this article explores Title II of the bill, the “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” or CLASSICS Act. (To read more about the bill generally and Title I, please visit our blog here.)

While Title I was concerned about contemporary songwriters and their publishers, Title II, as its name may suggest, is interested in the past. In particular, Title II allows for songwriters and record labels to obtain compensation for music sound recordings created before 1972. This is important because 1972 was the year that federal copyright protection was first extended to music sound recordings; as such, compensation claims for music sound recordings made before 1972 are only covered by state laws, and the states have been anything but consistent in this area.  The CLASSICS Act presents a clean solution to this problem by requiring digital music services to provide notice, track, and pay royalties, just as they would for music sound recordings made after 1972.

In addition, the CLASSICS Act will create “a digital performance right in favor of rights owners of sound recordings recorded before February 15, 1972 (and after January 1, 1923).” That is, in the event there is no separate voluntary license between the sound recording rights owner and the digital service, the royalties will be calculated and paid under the same system that is applied to works made after 1972. See IP Law Watch for more information.

The CLASSICS Act includes two final details that are relatively unique. First, the act provides protection for pre-1972 sound recordings as calculated by 95 years from initial publication. It is therefore possible sound recordings can gain an additional period of 3-15 years worth of copyright protection, depending on how recently the song was published. Second, and perhaps more peculiar, is that the CLASSICS Act provides an approach to “orphan works,” that is, music sound recordings for which an owner cannot be identified. The CLASSICS Act will permit “certain noncommercial uses of sound recordings that are not being commercially exploited,” so long as the person engaging in the use makes a good faith, reasonable search for, but does not find, the owner of such sound recording and notice is provided to the Copyright Office.