Beware the Ides of February: Kaleidoscoping Key Participants’ Public Performance Rights or Lack Thereof in Pre-1972 Sound Recordings

Abstract

Much of the flurry of recent music owes a debt to the melodies of immortal tunes. Each United States state legislature — or each state’s highest court, at the very least, should a case ever progress to that level in a given state — should, within reason, grant living performers and their heirs a right to public performance in pre-1972 sound recordings on which the former, or the latter's ancestor, performs, even one that is not exclusive, in the realm of their dissemination via digital streaming services, both subscription-conferring (Google Play) and non-subscription-conferring (YouTube) and/or satellite radio. At the very least, temporarily expanding that right to performers under state statutory law is necessary. The pressing starting point here is background. Federal law cautiously fills in the blanks to inform readers. What follows, then, is a cross-country review of state law from the states’ highest courts and possibly legislatures, beginning with the law of the states which may soon allow a common law public performance right for pre-1972 sound recordings, with a review of the skeptical states. The catch is whether to zoom in on whether composers-creators should wield such a right, and/or recording artists or performers, and/or copyright holders (who tend to be the recording companies, also known as producers abroad), and/or broadcasters, and then there is the question of how to balance that right with public consumption.