Today, the American Music Fairness Act (“AMFA”) will take a step forward as the bill is set for mark up with the House Judiciary Committee.  The Copyright Act provides exclusive rights to publicly perform sound recordings by means of digital audio transmissions (e.g., internet and satellite), and AMFA is the latest attempt to extend such rights to analog audio transmissions (e.g., terrestrial radio). 

Marking up the bill at this late stage of the Congressional term may mean the bill is tacked on to end-of-year spending packages (as with the CASE Act in 2020), or more likely that it will be taken up again next Congress.  With bipartisan and bicameral support of members on the relevant Committees of jurisdiction, AMFA could still move in a divided Congress, making it all the more important for stakeholders to engage now if they want to support or make changes to the bill.

The AMFA Bill

The bipartisan AMFA bill was first introduced in the House on June 24, 2021 (H.R.4130), and its companion Senate bill followed on September 22, 2022 (S.4932).  Rep. Jerry Nadler (D-NY) recently became the House bill’s primary sponsor after its original sponsor Rep. Ted Deutch (D-CA) left Congress.

The bill would amend Section 106(6) of the Copyright Act, which provides the exclusive right to publicly perform sound recordings via “digital audio transmission,” by deleting the word “digital.”  AMFA also attempts to address some criticisms that faced similar predecessor bills.  For example, AMFA proposes low flat fees for certain nonsubscription broadcast transmissions by public or smaller commercial stations, and other fees would be set in rate-setting proceedings before the Copyright Royalty Board.  Such rate-setting proceedings would take account of economic, competitive, and programming information, and whether transmissions substitute for or promote record sales, and interfere with or enhance other revenue streams for sound recording owners. 

What’s Next

The House Judiciary Committee marking up the bill this late in the current Congress creates a couple possibilities.  Based on the fact that the bill also has bipartisan support in the Senate with Senators Alex Padilla (D-CA) and Marsha Blackburn (R-TN) as primary sponsors, it could be included in an end-of-year spending package.  As with almost all legislation seeking to be added to an omnibus spending bill, this possibility is not particularly likely (although another copyright amendment, the CASE Act of 2020, is a recent exception).  What is more probable is that the bill may be considered again next Congress.  Rep. Darrell Issa (R-CA) is one of the main sponsors in the House and is expected to Chair the House Judiciary Subcommittee with jurisdiction over copyright issues, and Senators Padilla and Blackburn may very well remain on the Senate Judiciary Committee.  With that sort of bipartisan and bicameral support, AMFA falls into the category of legislation that could still move in a divided Congress, making it all the more important for stakeholders to engage now if they want to support or make changes to the bill. Even after the House Judiciary Committee approves the bill, there is still an opportunity to implement changes before it is included in an end-of-year spending package or is taken up again next Congress.  Specifically, with an eye toward next Congress, it is important for stakeholders to start voicing their opposition or support to important offices, or drafting relevant amendments for possible adoption.

Photo of Nicholas Xenakis Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (C-DA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).

Photo of Phillip Hill Phillip Hill

Phillip Hill focuses on complex copyright matters with an emphasis on music, film/TV, video games, sports, theatre, and technology.

Phillip’s global practice includes all aspects of copyright and the DMCA, as well as trademark and right of publicity law, and encompasses the full…

Phillip Hill focuses on complex copyright matters with an emphasis on music, film/TV, video games, sports, theatre, and technology.

Phillip’s global practice includes all aspects of copyright and the DMCA, as well as trademark and right of publicity law, and encompasses the full spectrum of litigation, transactions, counseling, legislation, and regulation. He regularly represents clients in federal and state court, as well as before the U.S. Copyright Royalty Board, Copyright Office, Patent & Trademark Office, and Trademark Trial & Appeal Board.

Through his work at the firm and prior industry and in-house experience, Phillip has developed a deep understanding of his clients’ industries. He also regularly advises on cutting-edge topics like generative artificial intelligence, the metaverse, and NFTs.

In addition to his full-time legal practice, Phillip serves as Chair of the ABA Music and Performing Arts Committee, frequently speaks on emerging trends, is active in educational efforts, and publishes regularly.