Law Journal Article Endorses American Music Fairness Act

On May 17, the Journal of Legislation published an article titled "Oh Brother, Where Art Thou Royalties? Reflecting on the Emergence of Bluegrass and Appalachian Folk Music in Promoting the American Music Fairness Act." Written by Mark Edward Blankenship, Jr., the article discusses the 2000 movie named in the title as a window into the need for Congress to pass legislation securing full public performance rights in music sound recordings. Existing law exempts terrestrial AM/FM radio stations that broadcast copyrighted sound recordings over-the-air from having to pay royalties to the owners of those recordings. As the article points out, "[t]errestrial radio is the only medium allowed to use intellectual property without copyholders' permission or compensation, which is fundamentally unfair."

The article provides a straightforward legal history of public performance rights as well as their extension to performances of copyrighted sound recordings – except when it comes to terrestrial radio broadcasting. That historical backdrop sets the stage for the American Music Fairness Act (MMA), which has been introduced in the 118th Congress – S.253 and H.R. 791.  The article rightly concludes that "[a]dopting the AMFA would benefit many artists, honor intellectual property owners’ rights, and promote the progress in the arts." 

The AMFA also is the subject of my February 2022 Perspectives from FSF Scholars, "American Music Fairness Act Would Secure Copyrights in Sound Recordings." 

As an important conceptual sidenote, I disagree with the article's statement that "[u]nlike its foreign counterparts that employ a natural-rights view, the United States employs an economical view of copyright protection." In The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press, 2015), Free State Foundation President Randolph May and I cited ample historical evidence that the Founding Fathers as well as jurists and legal scholars of the nineteenth century understood copyrights as natural property rights to the fruit of one's labors. Certainly, Congress takes economic considerations seriously in defining the boundaries of copyright protections. That is consonant with the Founders' political philosophy of natural rights, according to which copyright protections promote progress in the useful arts as well as financial opportunities for creators. 

However, it is true that U.S. copyright law is premised on a different set of principles than foreign countries. Although European regimes are characterized by some writers as being based on “natural rights,” the occasional use of the term in that context can be highly misleading. Different theories of natural rights exist, but when speaking about the American constitutional order, I think it best to speak of the natural rights principles reflected in the Declaration of Independence and held in common by the likes of the American Founders, James Kent, Daniel Webster, Abraham Lincoln, as well as other American statesmen and jurists. In chapter 6 of our book Modernizing Copyright Law for the Digital Age, Constitutional Foundations for Reform (Carolina Academic Press, 2020), FSF President Randolph May and I described European copyright regimes as being premised on a "moral rights" view. And in that book, we warn Congress against importing those foreign concepts into American law because they actually could undermine the protections for American copyright owners.