Re: mechanical license

On 02/27/2000, Charles Kramer <tilyou1[_at_]aol.com> wrote:
>
> Ordinarily, a "mechanical" (statutory) license would allow someone
> to make a "cover" version of a song without explicit permission.

The mechanical license _is_ 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?

Pretty much. Actually the performance royalties are a different issue, not to be confused with mechanical royalties.

> 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?

A mechanical license will not suffice. The producer of the commercial needs a _synchronization_ license from the publisher of the song and another license from the owner of the master recording.

> (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").

I recall that the copyright law makes express provision for these types of minor lyric changes, but I haven't taken the trouble to locate the exact language.

> 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?

The producer of the commercial should make sure that the synchronization license from the publisher expressly authorizes the change of lyrics. Depending on the publisher's deal with the songwriter, the songwriter's permission may be required.

Theodora Michaels
<tmichaels[_at_]carlinamerica.com> Received on Tue Feb 29 2000 - 14:37:38 GMT