On the Radio: Public Performance Rights in Sound Recordings

Copyright law gives the authors of a creative work certain exclusive rights in their creation. The scope of copyright in music depends on the type of work at issue and the particular use that is made of the work. U.S. law has explicitly recognized copyright in musical works (i.e., the compositions) since the early 19th century. Congress also has long recognized an exclusive right of public performance for musical works. This right means that entities wishing to perform a musical work publicly—for example, a symphony orchestra, music club, or a radio station—generally must pay royalties to the composers, songwriters, music publishers, or other owners of the musical-work copyright for that performance. In 1971, after decades of legislative efforts, Congress extended copyright to sound recordings (i.e., the recorded performance of a piece of music by musicians and singers). Although the issue was debated, Congress did not provide a public performance right for sound recordings in the 1970s. In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act (DPRSRA), which created a new exclusive right to publicly perform sound recordings. DPRSRA limited that right to performances made “by means of a digital audio transmission.” Because over-the-air transmission by broadcast radio stations falls outside the definition of “digital audio transmission,” radio stations do not need to pay royalties to the performers, record labels, or other owners of the sound-recording copyright to publicly perform a sound recording. Under DPRSRA, public performances of sound recordings fall into three broad categories—exempt transmissions, noninteractive digital transmissions, and interactive digital services—based on the means of transmission (broadcast versus internet, satellite, or cable) and the type of service (interactive versus noninteractive). Exempt transmissions do not require permission from or payment to the sound-recording copyright holder. Broadcast transmissions by Federal Communications Commission (FCC)-licensed radio stations, as well as certain transmissions to and within business establishments, are exempt. Noninteractive digital transmissions (such as the internet service Pandora, the satellite service SiriusXM, and the cable service Stingray Music) are subject to statutory licensing. These services do not need permission from the copyright holder to perform sound recordings, provided they pay a royalty rate set by the Copyright Royalty Board (CRB). Interactive digital services (such as Spotify and Apple Music) allow users to select particular sound recordings to be performed to them specifically. Interactive services must obtain permission from copyright holders, usually through a negotiated license and royalty rate. Two pieces of legislation introduced in the 119th Congress focus on public performance rights for sound recordings transmitted by broadcast radio. The first, a nonbinding resolution known as the Supporting the Local Radio Freedom Act (LRFA; H.Con.Res. 12 and S.Con.Res. 8), would effectively declare support for maintaining the status quo. LRFA resolves that Congress should not impose any new performance royalty (or other fee, tax, or charge) for the public performance of sound recordings by a local radio station via over-the-air broadcast or on any business for such public performance of sound recordings. The second, the American Music Fairness Act of 2025 (H.R. 861) and the American Music Fairness Act (S. 326), both abbreviated as AMFA, would expand the public performance right for sound recordings to include any audio transmission, including broadcast radio transmissions. AMFA would subject performances by radio stations to the statutory license applicable to noninteractive digital services and place caps on royalties for broadcast stations with annual revenue under $1.5 million in the preceding year (unless owned by an entity with annual revenue over $10 million).