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Saturday, October 29, 2011

Simple Guitar Lessons-Compulsory Mechanical License

Simple Guitar Lessons
Simple Guitar Lessons
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Mechanical Royalties

The term mechanical royalties developed in the 1909 Copyright Act, and referred to payments for devices serving to reproduce sound. Even though devices haven't reproduced sound "mechanically' since the 1940's, the name has stuck and the monies paid to copyright owners for the manufacture and distribution of records are still called mechanical royalties. The rights to reproduce songs in records are known as mechanical rights.
The concept of a compulsory license for these mechanical rights grew out of a concern in Congress that the music industry was going to develop into a gigantic monopoly. This desire to keep copyright owners from controlling the world resulted in the compulsory license for records, which accomplishes its mission nicely. It says that, once a work has been recorded and released to the public, the publisher is required to license it to anyone else who wants to use it in records.

Compulsory Mechanical License

The compulsory copyright royalty provision for records is in Section 115 of the Copyright Act. It provides that, once a song has been recorded and released to the public, a copyright owner must license it: (a) to anyone else that wants to use it in a phonorecord which is a defined term in the Copyright Act; and (b) for a specific payment established by the law. However, the owner must give a compulsory license only if:

1. The song is a non-dramatic musical work
2. It has been previously recorded
3. The previous recording has been distributed publicly in phonorecords
4. Your recording doesn't change the basic melody or fundamental character of the song
5. Your use of the recording will be in phonorecords only

All of these conditions must exist before you get a compulsory license. Let's look at them:

Non-dramatic Musical Work. Before you can get the license, the song must be a non-dramatic musical composition. It's not clear what a dramatic musical composition is, but it's probably a song used in an opera or musical.

Previously Recorded. You can't get a compulsory license for the very first recording of work. The law allows the owner to control who gets it the first time, which is known as first use. Once it's recorded, however, anyone can get a compulsory license if the first recording was authorized by the copyright owner.

Public Distribution. The first recording must have been distributed to the public. This closes loopholes from the prior law, and is of course eminently logical. It's not enough that the publisher allowed a recording to be made if it wasn't released.

No Major Changes. When you get a compulsory license, you're allowed to arrange the song to conform to the style or manner of interpretation of the performance. However, you can't change the basic melody or fundamental character of the work.

Phonorecord Use. A compulsory license is available only for phonorecords, which are defined in the copyright law to mean audio only recordings. This definition was the publishers finest lobbying accomplishment in the 1976 Copyright Act, because it excluded home video devices from the definition of phonorecrds. This means there's no compulsory license for home videos, and the result has been that motion picture companies must now negotiate with every copyright owner or publisher for home video usage of each song, and that the owners free to charge whatever rate they choose.

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