WINDOW FOR LIMITING PRE-72 SOUND RECORDING OWNERS’ ABILITY TO COLLECT CRIPPLING DAMAGES AWARDS FROM YOU IS RAPIDLY CLOSING
If you are an “Oldies” station – or you play more than a handful of songs from the early 60s/early 70s (or before) in a given week – then this post is for you. There is a provision in the recently enacted Music Modernization Act that gives you certain protections against crippling infringement awards for unauthorized uses of sound recordings fixed before February 15, 1972 (aka “pre-72 recordings”) – but only if you act on or before April 9. Surprisingly, very few people seem to be talking about the provision and even fewer have taken the steps necessary to benefit from it. (As of press time, the Copyright Office had posted only one form that had been filed by a single entity to take advantage of this provision (although we understand that other entities also have taken – or soon will take – advantage of the provision as well). But in our view, the protections offered by the provisions are significant enough to put the word out to our readers this week to let them decide whether the price tag is worth the product.
When Congress enacted the Music Modernization Act (“MMA”) last year, it included a variant of the CLASSICS Act (aka Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act), which grants pre-72 recording owners many of the same federal copyright law rights that post-72 recording owners have. One provision in this portion of the MMA limits the ability of pre-72 sound recording owners to obtain statutory damages and attorneys’ fees from an allegedly infringing service IF the service:
- provides contact information before April 9 on a designated form;
- certifies that it was performing pre-72 recordings via digital audio transmission as of the date of enactment of the MMA (October 11, 2018); AND
- pays the required fee of $105 plus an additional $35 for each alternate name of a service (affiliated companies must file separate forms at $105 apiece).
The form may be accessed here. Background information is available on the Copyright Office’s website. (Interestingly, the Copyright Office does not discuss on this web page the reasons why a service would want to provide notice of contact information but instead focuses on a separate filing provision applicable to copyright owners.) Additional background information that does discuss the benefits of providing notice of contact information is available here (March 22, 2019 Final Rule) and here (October 16, 2018 Interim Rule).
If the relevant information is provided, a pre-72 copyright owner cannot obtain statutory damages (which can run as high as $150,000 per sound recording played) or attorneys’ fees for a service’s infringement of a pre-72 recording until:
- the copyright owner first notifies the service of the specific sound recordings involved and states that the service is not authorized to use those recordings; and
- 90 days elapse from the service’s receipt of the notice (giving the service the chance to cure any infringement before potentially being subjected to crippling damages and fee awards).
In other words, if this form is filed by April 9, only infringement occurring 90 or more days after the service receives notice of infringement is subject to statutory damages and attorneys’ fees.
Services that do not file notice of contact information may be sued for both statutory damages and attorneys’ fees immediately upon infringement, with no right to receive such notice.
Once April 9 has passed, there is no further opportunity for a service to receive these protections.
Of course, you may decide not to file these forms if you do not use pre-72 recordings at all and do not ever plan to. Even if you stream some pre-72 recordings, you still may decide not to pony up the filing fee if:
- you are streaming pre-72 sound recordings and paying SoundExchange for those recordings under the statutory licenses found in sections 112 and 114 of the Copyright Act;
- you are sure that you are following all of the many license conditions; and
- that is the only way that you use – or plan in the future to use – pre-72 recordings in your business.
On the other hand, given how aggressive copyright owners can get (does anyone remember when a prominent performing rights organization (who will remain nameless) threatened to sue the Girl Scouts for singing campfire songs without a license?), $105 might seem like a pretty good insurance policy to limit the ability of pre-72 sound recordings owners to pursue bet-the-company litigation against you. Hurry! This offer expires on April 9 – only a few days from now.
As always, you should consult an attorney if you’d like more customized information on this issue.