Re: mechanical license

On 02/27/00, 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?

As others have pointed out, you need a synchronization license to use a song in a TV commercial. The following is therefore for informational purposes only:

Changing the lyrics in a substantial way would not be authorized by the mechanical license. Section 115(a)(2) states: "A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work ..." I think this would allow the gender change you referred to, but not other substantial changes.

This issue arose in Campbell v. Acuff-Rose. 2 Live Crew recorded a rap music parody of "Pretty Woman" in which the lyrics were substantially altered. In footnote 4, the U.S. Supreme Court noted: "2 Live Crew concedes that it is not entitled to a compulsory license under sec. 115 because its arrangement changes 'the basic melody or fundamental character' of the original."

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Thu Mar 02 2000 - 22:17:41 GMT