Re: mechanical license

On Sun, Feb 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 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?

At a minimum, a "cover" of an existing song that is used to score a TV commercial requires a synchronization license, not a mechanical license. A mechanical license only permits the "covering" of an existing song for use on an album, not the use of that song in a separate work. I also think that even a synch license won't be enough because, as you say, there is a suggestion of sponsorship or endorsement in the commercial use.

> Robert C. Cumbow
> Graham & Dunn, P.C.
> 1420 Fifth Avenue, 33rd Floor
> Seattle, Washington 98101-2390
> Phone: 206-340-9619
> Fax: 206-340-9599
> E-mail: rcumbow[_at_]grahamdunn.com
> Website: http://www.grahamdunn.com/
>

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