Deadline to Avoid Pre-1972 Sound Recording Statutory Damages Is Almost Here

Embedded in the Music Modernization Act signed into law in 2018 was a provision that extended most federal copyright protections to pre-1972 sound recordings. Prior to the enactment of the MMA, sound recordings made prior to February 15, 1972, may have been protected under state law, but federal copyright law protections did not apply.

While the MMA extended federal copyright protections to this subset of sound recordings, it also included language that provided an opportunity for digital audio service providers (i.e., streamers and podcasters) that play pre-1972 songs to avoid statutory damages and payment of attorney’s fees should the provider be found to have infringed the artist’s copyright.

On March 22, 2019, the Copyright Office adopted its final rule, requiring interested digital audio service providers to file a form with the Copyright Office providing contact information for the provider, and payment of a filing fee of $105 per digital audio platform. The online form must be filed (and the payment submitted) no later than Tuesday, April 9, 2019.

As described in the Copyright Office’s adopting order:

Under the Act, rights owners must also provide specific notice of unauthorized use to certain entities that were previously transmitting Pre-1972 Sound Recordings before pursuing certain remedies against them. To be entitled to receive direct notice of unauthorized activity from a rights owner, an entity must have been publicly performing a Pre-1972 Sound Recording by means of digital audio transmission at the time of enactment of section 1401 and must file its contact information with the Copyright Office within 180 days of enactment, that is, by April 9, 2019. Where a valid notice of contact information has been filed, the rights owner may be eligible to obtain statutory damages and/or attorneys’ fees only after directly sending the transmitting entity a notice stating that it is not legally authorized to use the Pre-1972 Sound Recording, and identifying the Pre-1972 Sound Recording in a schedule conforming to the requirements by the Office for filing Pre-1972 Schedules. For any eligible transmitting entities that do not file contact information by April 9, 2019, rights owners may seek statutory damages and/or attorneys’ fees resulting from unauthorized uses by those entities after filing Pre-1972 Schedules as described above.

So once the form is filed, an artist who alleges that the digital audio provider has infringed the artist’s pre-1972 copyright must first provide notice of the allegation to the individual listed in the form. Should the digital audio service provider resolve the alleged infringement within 90 days, the provider will be not be found liable for statutory damages ($150,000 per recording) or for the artist’s attorney’s fees arising from enforcement of the artist’s copyright.

Those that already pay SoundExchange for the right to play pre-1972 sound recordings may balk at the additional effort to submit the Notice of Contact form and pay a fee when, hopefully, they have at all times been in compliance with the SoundExchange-related requirements in that regard. However, given the simple, straight-forward form, the relatively nominal fee of $105.00 per platform, and the legal minefield that pre-1972 recordings have shown themselves to be over the past several years, streaming platforms that feature classic jazz, oldies, or similar recordings from before February 15, 1972 may find filing the form a worthwhile effort to minimize future infringement hassles.