By: Simone Washington
Simone Washington is a Michigan native and 3L at Mitchell Hamline School of Law. She recieved her Bachelors of Music Business from Howard University in 2017 and hopes to enter the field of Entertainment Law in Los Angeles, CA after graduating from Mitchell in 2020. She currently works as a Law Clerk for Travelers Insurance in St. Paul and hopes that her experience with different areas of the law will aid her in her future artist advocacy efforts. Simone is the President of the newly reactivated Sports and Entertainment Law Society, former Vice President of the Black Law Students Association and an active member of the Student Intellectual Property Association.
If music is the universal language of mankind, the Orrin G. Hatch Music Modernization Act (The MMA) should serve as a translator for the needs of modern-day musicians. The MMA, signed into law on October 11, 2018, claims to “provide clarity with respect to, and to modernize, the licensing system for musical works” and is meant to solve various copyright and royalty issues surrounding digital streaming platforms. Intellectual property rights serve as a first-rate defense for protecting and maintaining creativity, yet the dull sword of copyright protection has left singer-songwriters, producers, and industry professionals underwhelmed and seeking legislative refuge.
The Music Modernization Act
The Music Modernization Act was initially introduced to the House of Representatives on December 17, 2017, by Representative Bob Goodlatte and to the Senate on January 24, 2018, by Senator Orrin G. Hatch. The MMA is ultimately designed to streamline the process of licensing music. It is based on Section 115 of the United States Copyright Act, which provides a compulsory license to make and distribute phonorecords, subject to certain terms and conditions of use. The MMA also provides mechanical royalties for songwriters whenever a copy of their work is made (figures which are based upon negotiations between buyers and sellers in an open market rather than current-rate setting standards). Further, it proposes royalties for music producers and the creation of a non-profit government agency to regulate licenses. Overall, enactment of this law and its ramifications, good or bad, will reshape the industry for years to come.
The MMA has slightly changed requirements for mechanical licenses by establishing a new administrative organization for mechanical licenses, the Mechanical Licensing Collective (MLC). This organization will provide blanket licensing for downloading music and maintain a “publicly accessible database of sound recordings and musical works that includes their owners and respective ownership shares.” The United States Copyright Office has stated that blanket licenses in the form of permanent downloads, limited downloads, and interactive streams will no longer require Notices of Intention to obtain compulsory licenses.
How the Music Modernization Act Impacts Streaming Services
A foundational selling point of the MMA was its aim to simplify how streaming services compensate songwriters. Prior to the establishment of the MMA, streaming services could either wade through the tedious process of manually clearing every song before uploading or set up a fund to combat litigation after posting illicit tracks. Under the MMA, if a United States-based digital music provider follows the bill’s provisions, it will obtain a license to every past, present, and future musical composition in the world. Additionally, the MMA will ensure that songwriters are paid a portion of mechanical licensing royalties for the digital or physical reproduction of a musical work with lyrics at a rate set by contract. To be eligible for mechanical royalties, however, songwriters must register their copyrights with the MLC directly.
Further, the MMA’s introduction of the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act (CLASSICS Act) extended copyright protections to pre-1972 sound recordings. The CLASSICS Act was designed to provide regulations to unify the patchwork of laws in different jurisdictions and granted up to 144 years of protections for early recordings. Specifically, it gives owners of pre-1972 sound recordings the exclusive right to digitally transmit them and makes the recordings available via compulsory licenses for certain digital performances. It also provides compensation through royalties under the compulsory license regime and ensures that digital music providers will have “the option to pay royalties for three years’ worth of past performances in order to settle outstanding legal disputes.”  Much like the Digital Millennium Copyright Act, the CLASSICS Act presents safe harbor and fair use defenses to litigation and establishes intellectual property rights for these recordings. The CLASSICS Act will ultimately advantage artists and users of musical works alike by allowing them to benefit from the preservation and provision of public access to these works. One overview for the CLASSICS Act notes:
When a musician records a song today, federal law grants a copyright in the “sound recording”—the captured version of the performance, which is a distinct type of copyright from the one that covers musical notes and lyrics. But for historical reasons, sound recordings made before February 15, 1972 are governed by state, not federal, law. In recent years, disputes have arisen as to the scope of those state law rights when sound recordings are performed by digital music services, creating significant uncertainty for artists, record labels, and music distributors.
The CLASSICS Act would end that uncertainty by bringing digital performances of “pre-1972” sound recordings into the federal system. It would allow these performances of sound recordings to be licensed under the same statutory scheme as all other sound recordings: digital radio providers pay a royalty rate set by the Copyright Royalty Board for recordings they play, which is then distributed to performers and record labels. This act would ensure that digital music distributors who play by the rules have the freedom to continue to spin classic recordings by the likes of the Beatles, Jimi Hendrix, and Janis Joplin.
It is important to explore and examine the current copyright legislation to understand what provisions benefit industry personnel and what is geared towards compensating artists. Overall, the MMA actively works to address various issues facing the music industry today–many of which stem from advances in technology–and provides a new framework to govern licensing, streaming, and sound recordings. Whether this new framework is adequate remains to be seen.
 Music Modernization Act of 2018, H.R. 1551, Pub. L. 115–264 (2018).
 17 U.S.C. § 115 (2018).
 Alexandria Mueller, Welcome to the New Age: The Music Modernization Act, Bench & B. of Minn. (Mar. 2019), https://www.mnbar.org/resources/publications/bench-bar/columns/2019/03/05/welcome-to-the-new-age-the-music-modernization-act [https://perma.cc/AH4J-5T3J].( “In addition to benefiting the digital music provider, this centralized information will expedite all mechanical licensing in the U.S.”)
 The MMA is actually an omnibus bill, which combined the Musical Works Modernization Act, the Classics Protection and Access Act and the Allocation for Music Producers Act. Each act is given its own title within the law.
 The CLASSICS Act, Chris Coons United States Senator for Delaware, https://www.coons.senate.gov/imo/media/doc/The CLASSICS Act Senate – one pager – final.pdf. [https://perma.cc/879Q-KJSS].