Mechanical license

In copyright law, a mechanical license is a license that grants certain limited permissions to work with, study, improve upon, reinterpret, re-record (etc.) something that is neither a free/open source item nor in the public domain.

With regards to copyrights of musical recordings, there are at least two distinct copyrights. There is (1) the copyright of the composition, embodied in the sheet music (the “musical work”), which may include separate copyrights for lyrics or composition; and (2) the copyright in the sound recording, embodied as a “phonorecord” (Please note that the law considers ANY tangible medium capable of storing a recording to be a phonorecord. This includes MP3 players, CDs, 8-tracks, vinyl records, cassette tapes, or any future technology.) It is not unusual for one party to own the copyright in the underlying musical work while another, independent, party owns the copyright to the phonorecord.

A mechanical license (or simply, “mechanical”) is a license the holder of the underlying musical work grants to another party to cover, reproduce, or sample specific parts of the original composition. A mechanical license does NOT give a third party the rights to sample from any phonorecord of the original recording.

For example: Puff-Daddy wants to sample the opening riff from “Every Breath You Take” by The Police. He contacts the copyright holder of the underlying musical work and gets a mechanical license to use all or part of The Police’s song in his composition. He now has the right to reproduce all or part of “Every Breath You Take” in his new song. He cannot, however, purchase The Police’s Greatest Hits, take the CD (or MP3 from iTunes) into the studio, pull the track off of the phonorecord, and sample the riff into his new song. For Puff Daddy to sample from the phonorecord of The Police’s music, he must get both a mechanical license from the copyright holder of the underlying musical work, and a license from the copyright holder of the phonorecord from which he copies the sample. He is free to hire musicians to reproduce the Police's sound, but he cannot copy from any phonorecord with only a mechanical license.

Copyright law also allows for a "compulsory mechanical license". Under the law, anybody can obtain compulsory mechanical license without express permission from the copyright holder.

In the United States of America, most mechanical licenses are obtained through the Harry Fox Agency, Tunelicensing or EasySongLicensing.com. Other commercial agencies such as Loudr, and formerly RightsFlow (via the Limelight online mechanical license form utility), also issue compulsory mechanical licenses. On January 9, 2015 RightsFlow announced it would be closing its Limelight service. Harry Fox Agency and the other commercial agencies collect and distribute the royalties, plus they collect a per-song service fee of roughly $16.

A mechanical license can only be used after the original copyright holder has exercised their exclusive right of first publishing, or permission is negotiated.[1]

In American law, US Code Title 17, Chapter 1, Section 115(a)(2)[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 ..." thus preventing mechanical licenses being used to make substantially derivative works of a piece of music.

Musicians often use this license for self-promotion. For instance, a cellist who performed a musical work on a recording may obtain a mechanical license so he can distribute copies of the recording to others as an example of his cello playing. Recording artists also use this when they record cover versions of songs. This is common among artists who don't usually write their own songs. In the United States, this is required by copyright law regardless whether or not the copies are for commercial sale.

A mechanical license is not required for artists who record and distribute completely original work.[3]

In October, 2006 the Register of Copyright ruled that ring tones are subject to compulsory licensing.[4]

See also

Notes

  1. ↑ Halloran, Mark (1996). "Copyrights: The Law and You". The Musician's Business & Legal Guide. Pretence Hall. p. 65. ISBN 0-13-237322-X.
  2. ↑ "US CODE: Title 17,115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords". Cornell University Law School. Retrieved 2008-03-07.
  3. ↑ "Do I need a mechanical license?". Harry Fox Agency. 2004–2006. Retrieved 2010-08-08.
  4. ↑ "The billion dollar ringtones war". The Register. 2006. Retrieved 2007-01-09.
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