From a copyright perspective, there are two types of sound recordings¹ in the United States: those made on or after Feb. 15, 1972, and those made before (which for convenience, we'll call “pre-1972 sound recordings.”) On Feb. 15, 1972, new sound recordings first came within the scope of U.S. Copyright Act protection while earlier recordings did not. For example, the Beach Boys' recording of “Barbara Ann” made in 1965 cannot be protected by federal copyright against pirate copies, unlike their recording of “Wontcha Come Out Tonight” made in 1977.

But when Congress decided to protect sound recordings made on or after Feb. 15, 1972, against unauthorized reproduction under the Copyright Act, it did not see fit to afford their owners an exclusive right of public performance, which among other benefits would have generated fees from radio transmissions. This gap was partially closed in 1995 when a limited public performance right for sound recordings was added, but it only applies to digital broadcasts as distinguished from analog. To this day, neither federal law nor state law requires any payment for analog transmissions of sound recordings that were created on or after Feb. 15, 1972.

Pre-1972 sound recordings, on the other hand, exist without federal copyright protection and accordingly are not subject to Copyright Act provisions that apply to sound recordings made later, such as the compulsory license for some digital transmissions, mechanisms for authors and successors to terminate grants of rights, and the duration of copyright protection.² Instead, the rules that govern pre-1972 sound recordings come from a patchwork of state statutes and common law that can vary from one state to another and the omission of a public performance right for sound recordings with federal copyright protection doesn't affect them.