Congress Should End Radio Broadcasters' Free Ride

An old joke holds that a liberal is a conservative who's been arrested, and a conservative is a liberal who's been mugged. In the same vein, perhaps it might be said that a socialist is a capitalist who's grown accustomed to freeloading off the enterprise and creativity of others.

Such is the case with radio broadcasters. For the better part of 80 years, broadcasters have made their fortune from the artistry of musicians and singers, paying not even a penny from the profits earned from sending artists' recorded works over the airwaves.

No fair principle supports denying performers compensation for the use of their work. It's the product of a historic error that has been perpetuated by legal fiction and exploited by a powerful broadcast radio lobby.

Congress is poised to fix the mistake and end the exploitation with pending legislation that would recognize "performance rights" for radio broadcasts under federal copyright law. The final outcome will reveal which lawmakers believe in property rights and have faith in the marketplace.

Copyright law protects a wide variety of creative works and long has recognized the rights of musical composers, lyricists and publishers, including, more recently, in new media. Performers were left out of the loop because of an accident of history in the early days of radio.

A single panel of federal appellate court judges seemed not to understand how, under the then-relatively new technology, musicians and singers make a unique contribution to recorded works. They also appeared to be puzzled by broadcast technology — failing to recognize how repetitive airing of recorded music is functionally equivalent to republication in other media.

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Supreme Court declined to hear the case in 1940, and the ruling became the law of the land. Ever since, the broadcast industry has focused its considerable might on preserving the commercial windfall — mainly by fighting congressional action.

They offer tired arguments to protect the privilege. Performers already are adequately compensated by having their work "promoted" on the airways, the broadcasters argue. The performers think otherwise. The pending legislation would let the marketplace decide.

Broadcasters also have employed unfounded fear tactics. They claim that requiring the payment of royalties to performers would be ruin the industry. Yet music recordings broadcast via satellite, cable and online "streaming" already are subject to these royalties.

The pending legislation would allow, at most, nominal fees from small, nonprofit and religious radio properties. Big stations would have to negotiate a fair royalty. But that's business. And the artists have an obvious shared interest in the industry's continued profitability.

We had a chance to speak by telephone with Abdul "Duke" Fakir, the sole surviving member of legendary Motown group The Four Tops.

He reminisced about performing in St. Louis "way back in the day" at the Chase Hotel, the old Playboy Club and the Kiel Auditorium. He recalled that after The Four Tops had their first hit — "Baby I Need Your Loving" in 1964 — he found out that the composers (Brian Holland, Lamont Dozier and Edward Holland Jr.) got a nice check every couple of months as royalties for the song's performance.

"Aren't the artists supposed to get something from that?" he asked. "No, it doesn't go like that," he was told.

To this day, Mr. Fakir says "it doesn't seem right."

It doesn't seem right because it's not right.

Congress, at long last, needs to make it right.

REPRINTED FROM THE ST. LOUIS POST-DISPATCH.

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