There is currently a huge hole in copyright law, causing recording artists and recording labels to go uncompensated when broadcasting stations play their music on the radio. The American Music Fairness Act is looking to fix this problem and ensure that recording artists and labels are paid for the use of their sound recordings across all platforms.[i] Presently, the bill is being backed by both parties in the House of Representatives, seeing as the United States is currently the only democratic country in the world in which recording artists do not get compensation for the use of their work on AM/FM radio broadcastings.[ii] In part, this is because the National Association of Broadcasters has lobbied Congress for decades to prevent the creation of a bill such as the American Music Fairness Act. Nonetheless, with the passing of the American Music Fairness Act, a right to compensation for the use of sound recordings will be created to go along with the right of compensation for musical composition, which already exists.
In order to understand the huge effects that the American Music Fairness Act will have on the music industry, it is important to understand how United States copyright law affects music. Under Chapter 17, Section 106 of the United States Code, the owner of any work in the United States that is protected by copyright law generally has five exclusive rights: (1) the right to copy the work, (2) the right to prepare derivative works based on the original copyrighted work, (3) the right to distribute copies that the owner makes of the copyrighted work, (4) for works that can be performed, the right to publicly perform them, and (5) for works that can be displayed, the right to publicly display them.[iii] For sound recordings, though mentioned in the statute, there is no right to their public performance. Instead, they are given the limited right of being for digital audio transmission. Digital audio transmission refers to the internet or satellite radio, but there is no public performance right for sound recordings on AM/FM radio or in any other way in which there may be a public performance of a sound recording. In other words, when a song is played on either AM/FM radio, that station does not pay the recording artist or the recording label for the reproduction of that song. Yet, if the song were used in a YouTube video, then the person who made the YouTube video would have to pay the recording artist or the recording label for the use of their sound recording.
The National Association of Broadcasters has lobbied against the passage of this act because it will require them to pay the recording artist and recording label for the use of their sound recording every time it gets played on the radio. Nonetheless, in 2021, radio broadcasters had a revenue of twenty-one point nine billion dollars.[iv] This massive revenue shows that the broadcasting industry makes a large amount of money and is more than capable of paying recording artists and recording labels for the use of their sound recordings.
If the American Music Fairness Act is passed, it will achieve plenty of goals.[v] It will ensure compensation for recording artists and recording labels when their music is played on American radio. It will also treat competing music platforms the same, thus creating a fair market value for music performance royalties by including American broadcasts in the existing Section 114(d)(1) of Title 17 of the United States Code.[vi] Further, the American Music Fairness Act will have an exemption that will protect small, local broadcasters who have an annual revenue of less than one point five million dollars and whose parent companies have an annual revenue of ten million dollars by making them pay five hundred dollars a year in order to play unlimited music. The Act will also exempt qualified public, college, and other noncommercial stations who would pay only one hundred dollars a year. Additionally, the Act would support American artists when foreign stations play their music, recognizing American artist’s performance rights. Finally, the American Music Fairness Act would protect songwriters and publishers, ensuring no harmful impact on the public performance rights and royalties payable to songwriters, musical work copyright owners, and publishers.
If Congress enacts the American Music Fairness Act, recording artists and labels in the United States will be afforded the same protections that they are afforded in other democratic countries when their sound recordings are played on commercial radio stations. Radio stations get more money depending on what music is played and how much people enjoy that music. Therefore, the use of a recording artist’s and recording label’s sound recording without compensating those parties is inherently unfair. The passage of the American Music Fairness Act would not only even the playing field for the collection of royalties, but it would properly compensate musicians for the use of their music.
[i] See Marsha Blackburn, Blackburn, Padilla Reintroduce Bipartisan Bill to Ensure Artists Are Paid for Their Music Across All Platforms, Marsha Blackburn (Feb. 2, 2023), https://www.blackburn.senate.gov/2023/2/blackburn-padilla-reintroduce-bipartisan-bill-to-ensure-artists-are-paid-for-their-music-across-all-platforms.
[ii] See generally Why the American Music Fairness Act Will Give Music Creators What They Deserve, Recording Academy (June 24, 2021, 6:55 PM), https://www.recordingacademy.com/advocacy/news/why-american-music-fairness-act-will-give-music-creators-what-they-deserve.
[iii] See generally 17 U.S.C. §106 (2023).
[iv] See Marie Charlotte Gotting, Estimated Revenue of Radio Broadcasters in the United States From 2005 to 2021, Statista (Mar. 21, 2023) https://www.statista.com/statistics/184182/estimated-revenue-of-us-radio-broadcasters-since-2005/.
[v] See American Federation of Musicians, American Music Fairness Act, American Federation of Musicians, https://www.afm.org/what-we-are-doing/american-music-fairness-act/ (last visited Sep. 25, 2023).
[vi] See 17 U.S.C. 114(d)(1) (2023).
