BILL NUMBER:  S5234

 TITLE OF BILL :  An act to amend the arts and cultural affairs law,
in relation to creating and protecting a right of public performance
for creators of sound recordings

 PURPOSE OR GENERAL IDEA BILL :

Relates to statutory right of public performance for pre-1972
recordings

 SUMMARY OF PROVISIONS :

Section 1. The arts and cultural affairs law is amended by adding new
section 31.06 to read as follows: 31.06. Right of public performance
for creators of sound recordings. 1. Definitions. For purpose of this
section the terms "public performance" and "right performance" shall
mean the right to control or authorize the playing of copyrighted
sound recordings for profit, but shall not include the playing of
music on AM/FM radio, in a store, in a restaurant, in a bar, in a
museum, at a school, or other such place where the music is not the
central purpose for the presence of an individual in a given location
or no fee is charged.

2. The author of an original work of authorship consisting of a sound
recording initially fixed prior to February fifteenth, nineteen
              

hundred seventy-two, has an exclusive ownership therein until February
fifteenth, two thousand sixty-seven, as against all persons except one
who independently makes or duplicates another sound recording that
does not directly or indirectly recapture the actual sound fixed in
such prior sounds, even though such sounds imitate or simulate the
sounds contained therein.

3. Any person who causes the public performance of, or infringes on
the right of performance to, any copyrighted sound recording, without
the consent of its owner shall be guilty of a misdemeanor.

 JUSTIFICATION :

The Turtles lose their copyright case in New York against SiriusXM.
The majority decision addressed the matter but leaves it to the
Legislature to address a major question about state copyright
protections in the digital music age, four of the courts justices
agreed that state law does not afford public performance rights to
performers of music recorded before 1972. If the Turtles music was
recorded that year the federal protections would have existed.

In the dissent, Judge Jenny Rivera wrote that state law best serves
both the musician and the public by tracking federal public
performance right for post-1972 recordings.

In 1972 sound recordings were brought to the attention of federal
copyright protection. Any sound recordings that were made prior to
February 15, 1972 are protected by state laws. State laws will hold
protection over these recordings till the year 2067. The issue being
presented is that there are digital music services who are using these
recordings without permission or a fee and it cost artist and labels
over $60 million.

Project72 was launched in 2014 by SoundExchange. The campaign is to
ensure artist that their recordings from 1972 will be charged and they
will receive pay. In the 114th Congress, the RESPECT Act was now part
of the Fair Play Fair Pay Act, H.R.1733. This Act was introduced by
Representatives Jerrold Nadler (D-NY) and Marsha Blackburn (R-TN)


Flo & Eddie Inc., corporation " The Turtles " started three law suits
against Sirius XM in California, New York and Florida and they also
filed against Pandora in California. The issue raised is whether
digital music services must ask permission to play pre-1972
recordings. Flo & Eddie Inc. won their case in California , Judge
Gutierrez declared that copy right ownership of a sound recording
under § 980(a)(2) includes the exclusive right to publicly perform
that recording. The decision was based on that section which very
clearly states the following:

"The author of an original work of authorship consisting of a sound
recording initially fixed prior to February 15, 1972, has an exclusive
ownership therein until February 15, 2047, as against all persons
except one who independently makes or duplicates another sound
recording that does not directly or indirectly recapture the actual
sounds fixed in such prior recording, but consists entirely of an
independent fixation of other sounds, even though such sounds imitate
or simulate the sounds contained in the prior sound recording"

 PRIOR LEGISLATION HISTORY :

New Bill

 FISCAL IMPLICATIONS FOR STATE/LOCAL GOVERNMENT :

N/A

 EFFECTIVE DATE :
This act shall take effect immediately.