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Showing Legacy Artists Some R-E-S-P-E-C-T: Closing the 1972 Loophole

Showing Legacy Artists Some R-E-S-P-E-C-T: Closing the 1972 Loophole by Terrica Carrington

February 15, 2018

The year was 1972. Roberta Flack’s The First Time Ever I Saw Your Face was the number 1 record in the United States, topping both the Billboard Hot 100 and Easy Listening (known today as Adult Contemporary) charts for 6 consecutive weeks. Her rendition also won the award for Record of the Year at the 15th Annual Grammy Awards. Forty years later, it continues to be featured in popular movies and television shows including X-Men: Days of Future Past, Scandal, Mad Men, The Night Of, The People v. O. J. Simpson: American Crime Story, and Dancing with the Stars. Other hits from 1972 include Al Green’s Let’s Stay Together, Johnny Nash’s I Can See Clearly Now, Neil Diamond’s Song Sung Blue, and the Temptations’ Papa Was a Rollin’ Stone.

Today, Roberta Flack’s hit record is not covered by federal copyright protection. In fact, it was never even eligible for federal protection, and the same is true of Al Green’s Let’s Stay Together. But Nash’s I Can See Clearly Now, Diamond’s Song Sung Blue, the Temptations’ Papa Was a Rollin’ Stone, and even Isaac Hayes’ cover of Al Green’s Let’s Stay Together are all federally protected and have been since 1972. So what gives?

It all boils down to one important date: February 15, 1972. For many recording artists, especially young talent at the brink of their careers, it was a day of celebration, and recognition of the value of their work. After all, it was on this date that sound recordings first became eligible for federal copyright protection. But for many other recording artists, it’s the day they were left behind. You see, sound recordings became eligible for federal copyright protection, but not all sound recordings—only those recordings created on or after February 15, 1972. Roberta Flack recorded The First Time Ever I Saw Your Face in 1969. Al Green recorded Let’s Stay Together in the fall of 1971. Fortunately, both Flack and Green had incredibly successful careers with numerous hit records still to come. The very next year, both artists had chart topping songs and Flack even won the award for Record of the Year again, this time for her rendition of Killing Me Softly.

The sobering truth, however, is that most recording artists are extraordinarily lucky to achieve this level of success even once, let alone on a consistent basis. And without the royalty payments guaranteed by federal law to recording artists, it’s the legacy acts whose entire catalogs pre-date 1972, or those who reached the pinnacle of their success prior to 1972, who have suffered the most from a lack of federal protection. While many contemporary acts can count on at least some income from touring and merchandise sales, for most legacy acts, those are no longer practical options. Pair that with a lack of federal copyright protection, and we have a recipe for reducing some of the oldest living, and perhaps most influential, musicians and performers to second-class.

The good news, though, is that we may soon be able to right this inequity and close what’s become known as the “1972 loophole” once and for all. Last summer, a bill known as the CLASSICS Act—a law that would bring “sound recordings made before 1972…into the federal copyright system and ensur[e] that digital transmissions of both pre and post-1972 recordings are treated uniformly—was introduced in the House. Just last week, a companion bill by the same name was introduced in the Senate. Congressman Jerry Nadler (D-NY), the leading co-sponsor on the House bill, discussed the importance of passing this legislation, saying “Many of these older musicians are past their working years and have no other way to make ends meet…pre-72 recordings have value and that those who create it should be paid regardless of their age.”

Mary Wilson, a founding member of The Supremes, expressed exactly what this bill means to artists like her:

“As a proud California resident and an artist who recorded music before and after 1972, I’m deeply grateful … for this important bill that will finally allow artists like me to get paid by digital radio services for our pre-’72 recordings. It’s unacceptable that songs by my group The Supremes like “Stop! In the Name Of Love” or “Baby Love”…are treated with less value than our 1976 hit “I’m Gonna Let My Heart Do the Walking” and so many others recorded after 1972. With this bill, we are finally giving legacy artists the respect they deserve.”

And she’s absolutely right. It’s time we show legacy artists some R-E-S-P-E-C-T (sock it to ‘em, sock it to ‘em, sock it to ‘em, sock it to ‘em).

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