Music Modernization Act of 2018 Signed Into Law by President Trump

Guest Alert by Eric Moran.  Mr. Moran is a partner at McDonnell Boehnen Hulbert & Berghoff LLP and Chair of the firm’s Trademark, Unfair Competition, Advertising Law & Copyright Practice Group. (His office used to also be right next to mine at the firm).  This post was originally distributed via MBHB snippets. — DC

On October 11, 2018, President Donald Trump signed into law the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (“the Act”), which will significantly modernize copyright law to account for the digital delivery of content. The bill, as updated and passed unanimously by the Senate and then the House, revises the Copyright Act (17 U.S.C. § 115) in several major ways.

Title I of the Act, “Musical Works Modernization Act,” streamlines mechanical royalties for digitally distributed music by allowing streaming services to pay a mechanical licensing collective (“MLC”) for a blanket license to stream copyrighted material. The MLC has a board of directors of 14 voting members and 3 non-voting members, with 10 voting members being representatives of music publishers, while 4 voting members being professional songwriters. The MLC is responsible for a number of activities under the Act, including:

  • the administration of blanket licenses;
  • the collection and distribution of royalties from digital music providers to songwriters and publishers;
  • the identification of copyrighted material embodied in sound recordings, locating the copyright owners of such material, and administration of a process by which copyright owners can claim such ownership; and
  • assisting with setting of royalty rates and terms.

Helpful to copyright holders, the Act provides a mechanism for royalty rates to be raised to reflect fair market rates and terms—to account for changes in the market. And helpful to streaming services, the Act protects streaming services from infringement lawsuits for past infringements.

Title II of the Act, “Classics Protection and Access Act,” attempts to provide owners of pre-1972 sound recordings with copyright protection. Before this Act, pre-1972 sound recordings were not covered under U.S. copyright law (owners instead needed to rely on state and/or common law for protection). This Act brings pre-1972 sound recordings partially within federal copyright law by (i) providing federal remedies for unauthorized use of pre-1972 sound recordings for 95 or more years after first publication (which time may be extended depending on the year of first publication), (ii) providing a statutory licensing scheme for some digital streaming services, and (iii) providing a means of lawful, fair use of such recordings.

Title III of the Act, “Allocation for Music Producers Act” or the “AMP Act,” provides a means by which music producers can receive a portion of royalties distributed under the statutory license provided under section 114 of the Copyright Act.

The full text of the Act can be found here.


9 thoughts on “Music Modernization Act of 2018 Signed Into Law by President Trump

  1. 2

    I wondered about how chain of title may work – but also some notion that the law in the place when the work was created would always apply to that item of art…the presumtion against an ex post facto statue….

  2. 1

    I am curious – aside from any NON- Federal law avenues of protection**, is the movement now of items outside of Federal copyright protection and placing those items into Federal copyright protection an act of taking things from the public domain?

    Compare and contrast with Golan v Holder, remembering that it is the same Constitutional clause that is doing any (possible) taking out of the public domain.

    ** for the sake of argument, I am presuming that the non-federal items do not affect a discussion of the federal laws vis a vis the “taking out of the public domain” at the Federal level.

    1. 1.1

      (same clause for both copyright and patent; and keeping in mind views as to “calamity” for taking out of the public domain on the patent side, while the appearance [Micky Mouse as it may be], that taking out of the public domain for copyright is “alright,” or at least, “not that big a deal”)

      1. 1.2.2

        Something appears to be being pulled (but not a stick from the bundle, and not from the rights holder, but rather, from the public).

        And here, I thought that you might actually be “on my side” with concerns about things being taken from the public domain…

        Perhaps this is simply beyond your ability to understand…


          Last time I checked, the public has rights to stuff in the public domain.

          Maybe those rights aren’t sticks in a bundle but more like grains of sand on the beach. You tell me.

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