Ask the average American how much an artist receives when his or her music is played on the radio, and most will suggest that the musicians earn a penny or two per play. And if we’re talking about online radio, they would be right. But in the context of terrestrial AM/FM radio the answer is, in reality, zero. On February 4, 2009, the Performance Rights Act was introduced in the House and Senate which would require terrestrial stations to pay artists and musicians for the first time. The proposed Act raises several issues: why is the right being sought now, and why have copyright owners shifted reform focus from digital to terrestrial music outlets?
My article, The Super Brawl: The History and Future of the Sound Recording Performance Right, explores these and other considerations in the upcoming issue of MTTLR. The paper ultimately suggests that in addition to the Performance Rights Act, sound recording copyright holders should seek to expand their digital performance right online to encompass user-generated audiovisual works on sites like YouTube, Facebook, and Myspace. In consideration for an annual blanket fee, these performance-based sites would be secure against DMCA notice-and-takedown proceedings and infringement actions from participating sound recording copyright owners. Such a compromise would permit sound recording copyright holders to receive just compensation for their works performed online, save sites like YouTube millions in administrative and legal fees, and permit users to freely and fairly post sound recordings online.