by Gary Pulsinelli

The musical group The Turtles had several successful releases during the 1960s, but its biggest hit by far was Happy Together, recorded and released in 1967.  Now, the members of The Turtles want to be paid when their recording of the song is played on satellite radio or streamed over the Internet, one of the rights granted to owners of rights in sound recordings under the federal Copyright Act.  Unfortunately for them, United States copyright law did not provide protection for sound recordings until 1972, and even then the protection was not applied retroactively.  Lacking a federal remedy but still wanting the same treatment as more recent artists, The Turtles have turned to the states for help. They have filed a class-action suit against satellite radio provider SiriusXM in California, claiming that they have common law copyrights in those states and are thus entitled to compensation when their songs are played on satellite radio.

In Tennessee, The Turtles are trying an alternative approach. They have helped draft a bill that would directly provide them with the rights that they seek, along with several other rights. On January 27, 2014, state Senator Stacey Campfield introduced Senate Bill 2187, the Legacy Sound Recording Protection Act (the “LSRPA”).  The LSRPA, closely modeled on the provisions of the federal Copyright Act, would grant owners of sound recordings made before 1972, including The Turtles, essentially the same rights in Tennessee that owners of sound recordings made after 1972 enjoy throughout the United States under federal law.

While the proposed LSRPA raises a variety of interesting issues, both legal and practical, this Article will focus on one of the former: Whether the LSRPA is preempted by federal law, pursuant to the Constitution’s Supremacy Clause, or is otherwise inconsistent with federal law. The preemption issue arises from the nature of the targeted technologies. Because the LSRPA would be a Tennessee law, it would apply only in Tennessee. If other states do not follow Tennessee’s lead, transporting copies of sound recordings or broadcasting the recordings into Tennessee from another state may create problems. These problems are relatively minor as they relate to the rights of copying and distribution. However, they are much more profound with respect to digital performances. The Internet and satellite radio are inherently unlimited by state boundaries, and thus a recording may be performed in many states at once. Because under an enacted LSRPA, these performances would be infringing in Tennessee but not elsewhere, broadcasters would likely have a very difficult time protecting themselves from challenges by recording artists. Satellite broadcasters and webcasters generally cannot control—or even tell—where a customer is listening to a web feed or receiving a satellite radio signal. As a consequence, broadcasters might find themselves violating the statute when, for example, a California subscriber receives an Internet webcast or SiriusXM broadcast of a pre-1972 song while driving through Tennessee. This situation might be sufficiently problematic that a court would conclude that federal law preempts the LSRPA.

The preemption question is particularly complicated in this case because of the structure of the Copyright Act. Section 301(a) of the Copyright Act preempts any state law that applies to subject matter protected by the Copyright Act and grants a right equivalent to a right granted under that Act. Because the LSRPA would do exactly this (even borrowing its language from the federal statutes), § 301(a) would seem to doom Tennessee’s effort from the outset. However, § 301(c) provides an exception from the general preemption rule specifically for pre-1972 sound recordings, which would seem to validate Tennessee’s effort.  However, the preemption issue is more complex than these provisions might suggest, and the rights provided by the LSRPA raise issues that require a deeper exploration and analysis of preemption doctrine. First, the LSRPA might be preempted under the Copyright Act because it conflicts with one of the primary goals of the federal copyright system: granting consistent nationwide protection rather than a patchwork of state protections.  Second, the LSRPA may be preempted under the dormant commerce clause because it impedes interstate commerce.  Finally, the LSRPA may fail First Amendment scrutiny because it lacks any provisions allowing for fair use of the recordings.

Part I of this Article provides legal background, first on relevant aspects of copyright protection under both federal and state law and then on the constitutional preemption and First Amendment doctrines. Part II examines the basic provisions of the Legacy Sound Recording Protection Act, including some complications they raise.  Part III considers first whether federal law might preempt the LSRPA, and second whether the LSRPA might violate the First Amendment. Part IV then discusses bringing pre-1972 sound recordings into the federal copyright system as a possible solution to address the problems raised in Part III. Part V concludes.


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