Ordinarily, a "mechanical" (statutory) license would allow someone
to make a "cover" version of a song without explicit permission.
The owner of the cover gets proceeds from the sales of the recording
of it -- sales, that is, of the physical object -- but the owner of
the underlying song gets ASCAP and other public performance royalties.
In addition, the owner of the underlying song gets a royalty on sales
of the record -- if not at a negotiated rate, then at the higher
"mechanical rate".
I'm I right so far?
Now for particular facts:
(1) In my situation, the song will be used in a TV commercial. My guess -- and it is only that so far -- is that songs used to promote a product are not covered (or not entirely covered) by mechanical licenses -- the idea being that in addition to copyright, an issue of sponsorhip arises. Is that correct? Won't a mechanical license still be insulation at least from *copyright* damages? Or does do mechanical rules not apply at all?
(2) The song is not the original song -- lyrics have been changed (in
part to serve their commercial purpose), and the music has been changed
to try to avoid infringement. From which this question arises: often
"covers" of songs vary song lyrics -- for instance by gender ("He's my
man being She's my gal"). But what if the changes are more than that --
does a mechanical license (in a non-sponsorship context) cover that?
I mean, eventually, won't a work become an infringing derivation, not
a cover?
I welcome the comments of this list...
Charles Kramer
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