Case: 22-1859 Document: 00118157714 Page: 1 Date Filed: 06/18/2024 Entry ID: 6649656

United States Court of Appeals

For the First Circuit

No. 22-1859

RAFAEL ITHIER; EGC CORP., a/k/a El Gran Combo,

Plaintiffs, Appellees,

v.

CARLOS JUAN APONTE-CRUZ, a/k/a Charlie Aponte,

Defendant, Appellant,

JANE DOE; ABC INSURANCE COMPANY; COMPANY XYZ; RICHARD DOE; MARY
ROE; CONJUGAL PARTNERSHIP APONTE-DOE; CONJUGAL PARTNERSHIP
DOE–ROE,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Barron, Chief Judge,

Montecalvo and Rikelman, Circuit Judges.

José A. Hernández Mayoral for appellant.

Roberto Sueiro Del Valle for appellees.
Tim Dadson, Brieanne Jackson, Matthew S. Hellman, Jennifer P.
Garner, Jeffrey P. Bennett, Danielle S. Van Lier, Steven R.
Englund, Eric E. Petry, SoundExchange, Inc., Jenner & Block LLP,
American Federation of Musicians of the United States and Canada,
and SAG-AFTRA were on brief for SoundExchange, Inc., the American
Federation of Musicians of the United States and Canada, and Screen
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Actors Guild -- American Federation of Television and Radio

Artists, amici curiae.

June 18, 2024

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BARRON, Chief Judge. If you think that Paul, John,

George, and Ringo were "the recording artist[s] . . . featured" on

the White Album -- even though that iconic record's cover mentioned

none of The Beatles by name -- then you will not be surprised by

the analysis that follows. The prompt for our analysis, however,

is not a trivia question. It is an appeal from a judgment by the

United States District Court for the District of Puerto Rico in

connection with a dispute between the owners of El Gran

Combo -- one of the most popular Puerto Rican bands in

history -- and the band's former lead vocalist, Carlos Aponte-

Cruz. The dispute concerns the Digital Performance Right in Sound

Recordings Act of 1995 ("DPRA"), Pub. L. No. 104-39, 109 Stat.

336, which entitles the "recording artist or artists featured on

[a] sound recording" to a 45% share of certain royalties that the

recording generated. 17 U.S.C. § 114(g)(2)(D).

Aponte-Cruz contends that he is the

"artist . . . featured" on certain El Gran Combo sound recordings

for which he was the lead vocalist and so is entitled to his

portion of the 45% share of the statutory royalties for those

recordings. Id. The owners of El Gran Combo contend that the

band -- as an independent entity distinct from any of its

individual members -- is itself the "artist . . . featured" on

those recordings. Id. They thus contend that only the company

that owns the band, EGC Corp., and the company's sole owner, Rafael

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Ithier, have an entitlement to the 45% royalty share in the

recordings at issue. Id.

We conclude that even though the covers for the El Gran

Combo albums that contain the disputed recordings refer only to

the band itself and not to any of its individual members, the Paul

(or, if you prefer, the John) of El Gran Combo, Aponte-Cruz, is a

"recording artist . . . featured" on the recordings in dispute

and that neither EGC Corp. nor Ithier is. Id. Accordingly, we

reverse both the District Court's ruling granting summary judgment

to EGC Corp. and Ithier on their claims for declaratory relief

under § 114(g)(2)(D) and the District Court's ruling denying

summary judgment to Aponte-Cruz on his claims for that same kind

of relief.

I.

The following facts are not in dispute. Ithier founded

the musical group El Gran Combo in 1962 and created EGC Corp. to

administer his rights in the band. El Gran Combo typically has

fourteen members: three singers, two saxophonists, two trumpeters,

a trombonist, a bassist, a pianist, a timbalero, a conguero, a

bongosero, and a director.

Ithier selects the band's members. He also hires backup

vocalists or chorus members who are not members of the band but

who perform on some of the band's sound recordings.

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Carlos Aponte-Cruz was a member of El Gran Combo from

1973 to 2014. He was a lead vocalist in over 200 of the band's

sound recordings.

The section of the U.S. Code in question -- 17 U.S.C.

§ 114(g) -- was enacted as part of DPRA, which amended the

Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541, to

establish an exclusive right to perform a copyrighted work publicly

by means of a digital audio transmission, 17 U.S.C. § 106(6), and

to provide a statutory framework for the payment of royalties from

those digital transmissions to the intended beneficiaries, id.

§ 114(g). See SoundExchange, Inc. v. Copyright Royalty Bd., 904

F.3d 41, 46 (D.C. Cir. 2018). Section 114(g) reads, in relevant

part, as follows:

(g) Proceeds from licensing of

transmissions.--

(1) Except in the case of a transmission

licensed under a statutory license in
accordance with subsection (f) of this
section--

(A) a featured recording artist who performs

on a sound recording that has been licensed
for a transmission shall be entitled to
receive payments from the copyright owner of
the sound recording in accordance with the
terms of the artist's contract; and

(B) a nonfeatured recording artist who

performs on a sound recording that has been
licensed for a transmission shall be entitled
to receive payments from the copyright owner
of the sound recording in accordance with the
terms of the nonfeatured recording artist's

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applicable contract or other applicable

agreement.

(2) Except as provided for in paragraph (6),

a nonprofit collective designated by the
Copyright Royalty Judges to distribute
receipts from the licensing of transmissions
in accordance with subsection (f) shall
distribute such receipts as follows:

(A) 50 percent of the receipts shall be paid

to the copyright owner of the exclusive right
under section 106(6) of this title to publicly
perform a sound recording by means of a
digital audio transmission.

(B) 2 ½ percent of the receipts shall be

deposited in an escrow account managed by an
independent administrator jointly appointed
by copyright owners of sound recordings and
the American Federation of Musicians (or any
successor entity) to be distributed to
nonfeatured musicians (whether or not members
of the American Federation of Musicians) who
have performed on sound recordings.

(C) 2 ½ percent of the receipts shall be

deposited in an escrow account managed by an
independent administrator jointly appointed
by copyright owners of sound recordings and
the American Federation of Television and
Radio Artists (or any successor entity) to be
distributed to nonfeatured vocalists (whether
or not members of the American Federation of
Television and Radio Artists) who have
performed on sound recordings.

(D) 45 percent of the receipts shall be paid,

on a per sound recording basis, to the
recording artist or artists featured on such
sound recording (or the persons conveying
rights in the artists' performance in the
sound recordings).

Until the passage of the Small Webcaster Settlement Act

of 2002 ("SWSA"), Pub. L. No. 107-321, 116 Stat. 2780, royalties

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for sound recordings were distributed by the owners of copyrights

in the recordings. SWSA amended § 114(g)(2) to establish "[a]n

agent designated to distribute receipts from the licensing of

transmissions."1 § 5(c). SoundExchange, Inc. ("SoundExchange"),

a nonprofit performance-rights organization, is the "nonprofit

collective designated by the Copyright Royalty Judges [pursuant to

SWSA's amendment to § 114(g)(2)] to distribute receipts from the

licensing of transmissions." 17 U.S.C. § 114(g)(2); see 37 C.F.R.

§ 380.4(d)(1); SoundExchange, Inc. v. Muzak LLC, 854 F.3d 713, 715

(D.C. Cir. 2017). Representing the owners of sound-recording

copyrights and the recording artists who performed on those

recordings, SoundExchange collects royalties paid pursuant to the

statutory license under § 114 of the Copyright Act of 1976, as

amended and codified, and accordingly distributes those royalties

to the artists who performed on the sound recordings as well as

the copyright owners of the sound recordings.

For years, SoundExchange had been remitting all El Gran

Combo statutory royalties to EGC Corp., although the company has

not distributed any of those royalties to the members of El Gran

Combo. In 2017, however, SoundExchange shifted course after

1Congress has since amended 17 U.S.C. § 114(g)(2) to provide

that it is "a nonprofit collective designated by the Copyright
Royalty Judges" that is authorized to "distribute receipts from
the licensing of transmissions." Orrin G. Hatch-Bob Goodlatte
Music Modernization Act, Pub. L. No. 115-264, § 302(c), 132 Stat.
3676, 3740 (2018).

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Aponte-Cruz, having by then left El Gran Combo, made a formal

request to SoundExchange for the statutory royalties that he

claimed he was entitled to under § 114(g)(2)(D) for sound

recordings in which he had performed as the lead vocalist for El

Gran Combo. Aponte-Cruz based the request on his assertion that

he was a "recording artist . . . featured on [the] sound

recording[s]," id., and in response SoundExchange froze all

payments of royalties under § 114(g)(2)(D) that were related to

the sound recordings in which Aponte-Cruz appeared as lead singer

for El Gran Combo.

Thereafter, on November 8, 2019, Ithier and EGC Corp.

filed suit against Aponte-Cruz in the District of Puerto Rico for

a judgment declaring that (1) "Ithier is the sole owner of the

right to collect royalties as Artist from Sound Exchange as a

featured artist," (2) "during Aponte's Tenure in [El Gran Combo]

the defendant was an employee for hire for El Gran Combo making

Plaintiff the sole proprietor of any rights to collect royalties

from Sound Exchange," and (3) "Aponte[] is a non-featured artist

with a right to collect royalties as a non-featured Artist from

Sound Exchange." Aponte-Cruz filed an answer to Ithier and EGC

Corp.'s complaint on April 7, 2021, and he also filed at that time

a counterclaim for a declaratory judgment in favor of "defendant

Aponte ruling that he is entitled to collect royalties from Sound

Exchange as a performer in El Gran Combo sound recordings . . . and

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that plaintiffs must pay Aponte's share on royalties collected

from Sound Exchange that have not been distributed to the band's

performers."

Aponte-Cruz then moved for summary judgment on his

counterclaim for declaratory relief, requesting that the District

Court "rule that 'the recording artist or artists featured on such

sound recording' in [17 U.S.C. § 114(g)(2)(D)] are the members of

El Gran Combo that performed on each sound recording and that those

royalties are to be divided among them in the manner Sound Exchange

determines appropriate." Ithier and EGC Corp. filed a cross-

motion for summary judgment on their claims for declaratory relief.

The District Court referred the matter to a Magistrate

Judge for a Report and Recommendation ("R&R"). The R&R recommended

that the District Court grant the cross-motion for summary judgment

and deny Aponte-Cruz's motion.

Over Aponte-Cruz's objection to the R&R, the District

Court issued an Order adopting the R&R, and Judgment was entered

on the same day "granting declaratory relief in favor of Plaintiff

Rafael Ithier." The District Court ruled that

(i) El Gran Combo, a distinct legal entity

organized as a corporation, is the group most
prominently featured on the sound recordings
and, thus, is entitled to collect the
royalties as the featured artist; and (ii)
Rafael Ithier, as the sole owner of El Gran
Combo, is entitled to collect the featured
artist royalties due to the corporation.

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Aponte-Cruz timely appealed. SoundExchange, the

American Federation of Musicians of the United States and Canada,

and the Screen Actors Guild -- American Federation of Television

and Radio Artists filed an amicus brief in support of Aponte-Cruz.

The amicus brief argues, among other things, that the District

Court's decision "that [Ithier as band owner is entitled to collect

the featured-artist royalties rather than El Gran Combo's band

members like Aponte-Cruz] is a radical departure from the

distribution policies and practices that SoundExchange has

implemented over the last 20 years based on Section 114(g)(2)(D)

and international recording industry norms." The brief elaborates

on this assertion by stating that "SoundExchange's distribution

policies and practices and the international system for

distributing performance royalties are all based on the premise

that a featured performing group is its members."

II.

We review the District Court's summary-judgment rulings

de novo and draw all inferences in favor of the party against whom

summary judgment was entered. Pleasantdale Condos., LLC v.

Wakefield, 37 F.4th 728, 732-33 (1st Cir. 2022). Summary judgment

is appropriate if, based on the record, there remains no dispute

of material fact -- that is, if, based on the record, there is no

factual determination which a "rational factfinder" could make as

to the "existence or nonexistence" of a fact that "has the

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potential to change the outcome of the suit" -- such that "the

moving party is entitled to judgment as a matter of law." Borges

ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4-5 (1st Cir. 2010).

Although the parties have filed cross-motions for summary

judgment, we review each party's motion independently, viewing the

facts and drawing inferences as required by the applicable

standard, and we determine, for each side, the appropriate ruling.

See Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230

(1st Cir. 1996).

III.

The key issue turns on the following question about the

phrase "recording artist or artists featured on such sound

recording" in § 114(g)(2)(D). Does that phrase, with respect to

the sound recordings in question, refer to El Gran Combo as a

distinct entity independent of any of the band's individual members

or only to the individuals who make up the band, including Aponte-

Cruz as the lead vocalist? Before directly addressing that

question, however, we first must address whether Aponte-Cruz

failed to raise below the arguments that he is now making on appeal

-- namely, that he is the "artist . . . featured" on the recordings

in question because he appeared on those recordings as a member of

El Gran Combo. Id.; see Dávila v. Corporación de P.R. para la

Difusión Pública, 498 F.3d 9, 14 n.2 (1st Cir. 2007) ("A

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party . . . forfeits a right by failing to assert it in a timely

manner.").

Ithier and EGC Corp. intimate that Aponte-Cruz either

forfeited or waived the arguments he is making on appeal by failing

to raise them below, as Ithier and EGC Corp. contend that Aponte-

Cruz argued in the proceedings in the District Court only that he

"was an individual with a right to the featured artist's royalties"

and did not make a "claim for royalties as a[n El Gran Combo band]

member." But we disagree.

The record shows that Aponte-Cruz's arguments on behalf

of his position below mirror his arguments to us. For example, in

his motion for summary judgment, Aponte-Cruz stated, "The matter

for this Court to adjudicate is whether under [17 U.S.C.

§ 114(g)(2)(D)], 'the recording artist or artists featured on such

sound recording' is Ithier as the band owner, or the members of

the band within which Carlos Aponte is lead singer." Aponte-Cruz

went on to state his position that "the statutory framework [and]

the common meaning of the [statutory] terms . . . make clear that

'the recording artist or artists featured on such sound recording'

is a reference to the human beings performing and producing the

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sounds that are heard in the sound recording, not the owner of the

band." We thus move on to the merits.2

IV.

Ithier and EGC Corp. contend that we must affirm the

judgment below because the District Court was right to hold that:

(1) "El Gran Combo, a distinct legal entity organized as a

corporation, is the group most prominently featured on the sound

recordings and, thus, is entitled to collect the royalties as the

featured artist"; and (2) "Rafael Ithier, as the sole owner of El

Gran Combo, is entitled to collect the featured artist royalties

due to the corporation." In so arguing, Ithier and EGC Corp. do

not dispute that the construction of the statute that they propose

-- and that the District Court adopted -- would upset the way that

the statute has long been implemented.

As we have noted, SoundExchange, the American Federation

of Musicians of the United States and Canada, and the Screen Actors

Guild -- American Federation of Television and Radio Artists

explain in their amicus brief to us that SoundExchange has been

To fend off the suggestion of forfeiture and waiver, Aponte-

2

Cruz contends that the Magistrate Judge and the District Court
misconstrued the basis for his request for declaratory relief. He
argues that they failed to grasp that the basis for that request
was that "'featured artist' in this context[] means the band as a
whole whose members performed on the sound recording." We
disagree, however. The Magistrate Judge specifically stated in
her R&R that "Aponte argues that the members of the band El Gran
Combo are all featured artists under the statute and are entitled
to a share of 45% of the royalties."

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the "nonprofit collective designated by the Copyright Royalty

Judges to distribute receipts from the licensing of transmissions"

under § 114(g)(2) for the last two decades. See 37 C.F.R.

§ 380.4(d). And, although the record shows that, here,

SoundExchange distributed the relevant royalties to EGC Corp.

prior to the advent of this suit, the amicus brief notes -- without

dispute by Ithier or EGC Corp. -- that in its capacity as the

designated nonprofit collective, SoundExchange's longstanding

practice is to "distribute 45% of statutory royalties to the solo

artist, or members of a group of artists, featured on a recording"

and not to the owners of the band, regardless of whether the cover

of an album that contains a recording mentions only the band and

thus none of the band's members.

Ithier and EGC Corp. nonetheless contend that the

District Court's contrary construction is required by both the

text of the statutory provision at issue and, insofar as the text

alone is not dispositive, the relevant legislative history. We

cannot agree.

A.

With respect to the statute's text, see United States v.

Winczuk, 67 F.4th 11, 16 (1st Cir. 2023) ("[Using the normal tools

of statutory interpretation, w]e begin, as always, with the text

of the statute."), Ithier and EGC Corp. recognize that no statutory

provision defines either the phrase "the recording artist or

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artists featured on such sound recording" or any of that phrase's

constituent parts. 17 U.S.C. § 114(g)(2)(D). But they contend

the ordinary meaning of the word "featured" shows that their

position is right.

To make that case, Ithier and EGC Corp. point to a

dictionary definition of the word "featured": "displayed,

advertised, or presented as a special attraction." Featured,

Merriam-Webster (May 16, 2024), https://www.merriam-

webster.com/dictionary/featured [https://perma.cc/9NL7-7822].

They then contend that, because we generally presume that Congress

intends the words that it uses in statutes to have their ordinary

meaning, see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

P'ship, 507 U.S. 380, 388 (1993), the statutory provision's use of

the word "featured" requires that we "focus on the sound recording

album covers" to determine which artist was "featured."3 After

all, they assert, there is no better place to look to determine

the "artist" that is "displayed, advertised, or presented as a

3 In support of their contention that we should "focus on the

sound recording album covers" to determine which artist was
"featured," Ithier and EGC Corp. also note that SoundExchange's
"Key Terms for Creators" page on its website states that "[t]he
term Artist refers [to] the group, band, or individual name as it
appears on the release of a recording." Key Terms for Creators,
SoundExchange, https://www.soundexchange.com/what-we-
do/forartists-labels-and-producers/key-terms/
[https://perma.cc/RYE5-TH29]. But we do not find this
definitional argument persuasive because such an argument "finds
no support in the language of the statute [or] in precedent."
United States v. Newton, 891 F.2d 944, 951 (1st Cir. 1989).

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special attraction" for a given sound recording than the cover of

the album that contains that recording. Featured, supra. And

from there, Ithier and EGC Corp. go on to assert that, because the

album covers for the sound recordings at issue refer solely to "El

Gran Combo" and not to any of the band's individual members, the

band as an independent entity is alone "displayed, advertised, or

presented as a special attraction." Id. Therefore, Ithier and

EGC Corp. contend, "the recording artist or artists featured on

such sound recording," 17 U.S.C. § 114(g)(2)(D), is the band as a

distinct entity and not any of its individual members. And so,

according to Ithier and EGC Corp., the corporation that owns the

band (EGC Corp.), and thus Ithier as the sole owner of that

corporation, is the "recording artist . . . featured" on the

recordings in question. Id.

Ithier and EGC Corp. also emphasize that this

construction of § 114(g)(2)(D) would not preclude Aponte-Cruz --

or any other member of El Gran Combo -- from collecting statutory

royalties. Aponte-Cruz would still be entitled on this reading to

his portion of the 2.5% of statutory royalties "distributed to

nonfeatured vocalists . . . who have performed on sound

recordings" for the recordings on which he was the lead vocalist,

just as (presumably) the individual members of The Beatles would

be under EGC Corp. and Ithier's construction of the provision for

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their work as "nonfeatured" artists on the White Album's sound

recordings. Id. § 114(g)(2)(C).

Indeed, Ithier and EGC Corp. contend that unless

§ 114(g)(2)(D) is read as they read it, §§ 114(g)(2)(B) and

114(g)(2)(C) -- which provide, respectively, for the payment of

statutory royalties to "nonfeatured musicians" and "nonfeatured

vocalists" -- would be rendered superfluous. For, they contend,

under Aponte-Cruz's contrary reading of § 114(g)(2), all members

of a band (be that band El Gran Combo or The Beatles) would be

considered "featured" artists under § 114(g)(2)(D) while no member

of the band would be considered a "nonfeatured" musician or

vocalist.

We are not persuaded. Ithier and EGC Corp. are, of

course, right that the statute's use of the word "featured"

distinguishes between "recording artist[s]" who are "featured" and

those who are "nonfeatured." Id. § 114(g). But the use of the

word "featured" does not in and of itself tell us that the

"recording artist or artists featured" on the sound recordings on

a band's album cannot be any of the individual members of that

band whenever the album cover refers only to the band itself and

not to any of the individual members. Id. § 114(g)(2)(D).

As Aponte-Cruz explains, the word "featured" could

simply require us -- when confronted with such an album cover --

to treat as "featured" the individual natural persons who are

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members of the band named on the cover and as "nonfeatured" any

session musicians, backup vocalists, or chorus members who also

appear on the sound recordings but are not members of the band.

After all, there is nothing strained about concluding that such

individual band members are "presented as a special attraction" on

the "sound recording[s]" through the album cover's reference to

the band itself, given that the band is, in the end, a collection

of individuals. Featured, supra; 17 U.S.C. § 114(g)(2)(D).

Moreover, although neither § 114(g) nor any other

section of the Copyright Act of 1976 specifically defines "the

recording artist or artists featured on such sound recording," id.

§ 114(g)(2)(D), § 114(g)(1)(A) does refer, in describing a

"featured recording artist," to "who performs on a sound recording"

(emphasis added). And the word "who," especially when used as the

subject of the subordinate clause that uses the verb "performs,"

is most comfortably read to be referring to a natural person rather

than an artificial entity.

Indeed, this conclusion comports with the "Definitions"

section of the Copyright Act of 1976 as amended and codified. That

section provides that "[t]o 'perform' a work means to recite,

render, play, dance, or act it, either directly or by means of any

device or process," and it is people, not artificial, nonphysical

entities like a corporation, that "recite, render, play, dance, or

act," id. § 101, even when those individuals do so collectively.

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We also note that, if the phrase "the recording artist

or artists featured on such sound recording," id. § 114(g)(2)(D),

were not construed to refer to the natural persons who "perform"

on the sound recordings, then the statute would contain a curious

ambiguity about who would be entitled to the 45% share of the

statutory royalties, id. § 101. To be sure, Ithier and EGC Corp.

contend that the "recording artist . . . featured" here clearly is

EGC Corp. (and thus Ithier as its owner), as that company owns El

Gran Combo. Id. § 114(g)(2)(D). But Ithier had no clear answer

at oral argument as to the meaning of "recording

artist . . . featured" in the case of an unincorporated band, id.,

as he variously described the featured artist in that case as the

person who determines who is in the band and the person who founded

the band. See In re Graves, 33 F.3d 242, 249 n.14 (3d Cir. 1994)

("When interpreting a statute a construction which would create

confusion should be avoided." (internal quotation marks and

citation omitted)).

Additionally, we note that, in construing "the recording

artist[s] . . . featured," 17 U.S.C. § 114(g)(2)(D), on El Gran

Combo's sound recordings to refer to each of the individual members

of that band, we do not thereby render either § 114(g)(2)(B) or

§ 114(g)(2)(C) superfluous in referring, respectively, to

"nonfeatured musicians" and "nonfeatured vocalists." Those

provisions would be fully applicable in the case of any band that

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hires session musicians, backup vocalists, or chorus members who

are not members of the band but who perform on some of the band's

sound recordings. And, we must say, there is some intuitive appeal

to the notion that Congress did not use the word "featured" to

equate a star like Lennon or McCartney with a session musician

like Frederick Alexander (who played the cello for "Martha My Dear"

on the White Album), such that each would be entitled to only equal

portions of the 5% share of royalties owed to "nonfeatured"

artists.4 Id. § 114(g)(2).

In sum, the statutory provision in question refers to a

"recording artist . . . featured" on a sound recording, id.

§ 114(g)(2)(D), and then elsewhere refers to such an "artist" as

one "who performs" -- and thus one who "recite[s], render[s],

play[s], dance[s], or act[s]," id. §§ 101, 114(g)(1)(A). As a

result, the statute's text is most naturally read to be referring

to an individual person -- and not a disembodied entity -- in

referring to an "artist." For that reason, the statutory text

points against the construction that Ithier and EGC Corp. favor

and toward the construction that Aponte-Cruz advances. And so, if

the statutory text were our only guide, we would see no reason to

4 We note that this reading of the word "featured" also appears

to accord with commonly understood and accepted terms of art in
the music industry, including that "artists" are human beings and
that the terms "nonfeatured" vocalist and musician refer to backup
singers and session musicians, respectively.

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construe the provisions at issue as Ithier and EGC Corp. contend

that we must.

B.

Ithier and EGC Corp. do separately contend that even if

the statutory text does not compel their construction of

§ 114(g)(2)(D), the legislative history of the Copyright Act of

1976 and its amendments does. But we cannot agree, even assuming

that the text is not so clearly supportive of Aponte-Cruz's

position as to render the inquiry into the legislative history

unnecessary. See Telecomms. Regul. Bd. P.R. v. CTIA-Wireless

Ass'n, 752 F.3d 60, 66 (1st Cir. 2014) ("Where the text of a

statute is clear, as it is here, we need not go on to consider the

act's legislative history to divine Congress's

intent. . . . Nevertheless, in an abundance of caution, we will

proceed to consider . . . Appellants' argument that our

interpretation of the statute is contrary to congressional purpose

as evidenced by the [statute's] legislative history.").

For starters, much of the legislative history appears to

contemplate that "the recording artist or artists featured on such

sound recordings" would be natural persons and thus to support

Aponte-Cruz's natural-person-based reading of "recording

artist . . . featured." 17 U.S.C. § 114(g)(2)(D). For example,

in presenting the bill that eventually became DPRA to the Senate

Floor, Senator Orrin Hatch stated, "Mr. President, it is important

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that the creators of America's music -- whether they compose the

score, write the lyrics, sing the songs, or produce the recordings

-- be fairly and equitably compensated for the public performances

that result. For too long they have not been." 141 Cong. Rec.

S11949 (daily ed. Aug. 8, 1995) (statement of Sen. Orrin Hatch)

(emphasis added).

Indeed, while Congress initially envisioned statutory

royalties flowing through copyright owners like record companies,

in 2002 Congress amended § 114(g)(2) to provide even more

protection to recording artists by codifying arrangements to pay

them directly through a collective like SoundExchange, rather than

through record companies and other copyright owners. See SWSA,

Pub. L. No. 107-321, § 5, 116 Stat. 2780, 2784-85. As

Representative John Conyers, Jr. stated during House consideration

of SWSA:

This bill has several provisions that will

make it easier for music to be performed
online and for the creators to be
compensated. . . . I am especially pleased
that the final legislation includes a
statutory direct payment provision. This
provision ensures the musicians, vocalists,
and artists receive their royalties from
digital music directly from the collection
agent instead of through other intermediaries.

148 Cong. Rec. H7047 (daily ed. Oct. 7, 2002) (statement of Rep.

John Conyers, Jr.) (emphasis added); see also, e.g., Copyright

Royalties: Where Is the Right Spot on the Dial for Webcasting?:

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Hearing on H.R. 5469 Before the S. Judiciary Comm., 107th Cong.

132 (2002) (statement of Dan Navarro, Member, Am. Fed'n of

Television & Radio Artists & the Am. Fed'n of Musicians of the

U.S. & Can.) ("Congress redressed a small part of the unfair

position to which American performers had been relegated when it

passed [DPRA]. For the first time, Congress required that at least

some public performances of recorded music require payment to the

creators of that music for the right to perform [their] work."

(emphasis added)).

In nonetheless arguing that the legislative history of

DPRA favors their position, Ithier and EGC Corp. rely chiefly on

the portion of the Senate Report that clarified the following with

respect to the term "featured recording artist" as used in another

provision of § 114 that does not itself pertain to royalties at

all. That passage reads as follows:

The term "featured recording artist" means the

performing group or ensemble or, if not a
group or ensemble, the individual performer,
identified most prominently in print on, or
otherwise in connection with, the phonorecord
actually being performed. Except in the case
of a sound recording consisting of a
compilation of sound recordings by more than
one performer or group or ensemble, there will
ordinarily be only one "featured recording
artist" per phonorecord. A vocalist or
soloist performing along with a group or
ensemble is not a "featured recording artist"
unless that person is identified in connection
with the phonorecord as the primary performer.
For example, the Eagles would be the "featured
recording artist" on a track from an Eagles

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album that does not feature Don Henley by name

with equal prominence; but if the same sound
recording were performed from "Don Henley's
Greatest Hits," then Don Henley and not the
Eagles would be the "featured recording
artist." Where both the vocalist or soloist
and the group or ensemble are identified as a
single entity and with equal prominence (such
as "Diana Ross and the Supremes"), both the
individual and the group qualify as the
"featured recording artist."

S. Rep. No. 104-128, at 36 (1995) (emphasis added).

Ithier and EGC Corp. contend that this passage reveals

that the featured recording artist is "the artist 'most prominently

included in print on, or otherwise in connection with, the

phonorecords performed.'" Id. And so, they contend, this passage

shows that the "featured recording artist" here is El Gran Combo

the entity and not any individual member of it. Id.

But, although the Senate Report states that "the Eagles

would be the 'featured recording artist' on a track from an Eagles

album that does not feature Don Henley by name with equal

prominence," id., when this portion of the Senate Report is read

in context, it provides no support to Ithier and EGC Corp.'s

position. The Senate Report is addressing the "sound recording

performance complement," see 17 U.S.C. §§ 114(d)(2)(B)(i), (C)(i),

(j)(13), which is a requirement that limits the number of times

within a three-hour period that a statutory licensee can play

recordings from the same album or "featured recording artist," S.

Rep. No. 104-128, at 36. The examples the Senate Report uses are

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thus directed to the practical problems that a radio station or

other service provider playing a recording from a physical album

in 1995, or more recently playing a digital file with limited

identifying metadata, has tracking compliance with the performance

complement. See id.

For that reason, the examples given in the Senate Report

are best read to be simply clarifying that a radio station or other

service provider playing a sound recording from an album on which

a person is performing as part of a band can play a sound recording

from another album on which that same person is performing in a

different capacity without necessarily running afoul of the "sound

recording performance complement." See 17 U.S.C.

§§ 114(d)(2)(B)(i), (C)(i), (j)(13). As the Senate Report

explains by way of example, a radio station or other service

provider could play a song from an Eagles album that does not

separately display the name of Don Henley -- one of the band's

members -- prominently on the album cover. See S. Rep. No. 104-

128, at 36. But playing that same song from a "Don Henley's

Greatest Hits" album within a three-hour period would not count

against the radio station or other service provider for purposes

of the performance complement because Don Henley is playing in his

capacity as a member of the band in one of the recordings and in

his capacity as an individual artist in the other. See id.

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Similarly, it is undisputed here that Aponte-Cruz was

once a member of El Gran Combo and, having left El Gran Combo in

2014, Aponte-Cruz now performs as a solo act and receives separate

payments as a featured artist from the albums he has released in

his solo-act capacity after he left El Gran Combo. But receiving

statutory royalties for being the featured artist on a solo album

is not in tension with also receiving statutory royalties as a

member of a band -- and thus also as one of the featured artists

-- on a band's album. We thus do not understand this passage in

the Senate Report to be weighing in on the point in dispute here

-- whether a "featured" artist in § 114(g)(2)(D) is the band as an

entity independent of its individual members or instead the

individual members of that band.

C.

In sum, Ithier and EGC Corp. ask us to reject the way

that 17 U.S.C. § 114(g) has been implemented for at least the past

twenty years. And they do so chiefly based on a textual assertion

that relies wholly on an argument about the word "featured" that

does not hold up when considered carefully. Insofar as they mean

to say that the legislative history also shows that their

understanding of the word "featured" is the correct one, moreover,

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that contention also fails, for all the reasons set forth above.5

See Am. Fuel & Petrochemical Mfrs. v. EPA, 3 F.4th 373, 383 (D.C.

Cir. 2021) ("[A]mbiguous [legislative] history hardly suffices to

overcome the plain text [of the statute in question], for courts

'do not resort to legislative history to cloud a statutory text

that is clear.'" (quoting Ratzlaf v. United States, 510 U.S. 135,

147-48 (1994))). As a result, we conclude that Aponte-Cruz is

"the recording artist . . . featured on such sound recording," 17

U.S.C. § 114(g)(2)(D), and so is entitled to the statutory

royalties he claims are his, notwithstanding the District Court's

conclusion to the contrary.6

5 Ithier and EGC Corp. also argue that "the internal

contractual relationship between Aponte and Ithier should be the
central focus of the featured artist's inquiry because it is the
deciding factor and thus, dispositive of the featured artist
issue." See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730
(1989). But, even assuming that a contract between Aponte-Cruz
and Ithier and EGC Corp. that renounced the statutory royalties at
issue here would be valid, Ithier and EGC Corp. admitted at oral
argument that there was no such contract entered into here.
6 Ithier did play as a member of El Gran Combo in some of the
band's recordings as a pianist. Consistent with our holding here,
he would be entitled to featured-artist statutory royalties
generated by those recordings because he played on those recordings
as a member of El Gran Combo. For the reasons we have explained,
he would not, however, be entitled to featured-artist royalties
for those recordings simply because he is the owner of EGC Corp.

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V.

The District Court's award of summary judgment to Ithier

and EGC Corp. and its denial of summary judgment to Aponte-Cruz

are both reversed. The parties shall bear their own costs.

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