Compulsory License

Also known as a mechanical license or a statutory license.

This does not apply to photography, so if you’re a photographer or a user of a photo then you can skip this section.

A compulsory license (also known as a mechanical or statutory license) primarily concerns the recording of music (under copyright law) and the manufacturing of life-saving drugs (under patent law). There is no compulsory license for photography.

For example, if you wanted to make CDs of your band playing cover music, you’d need a compulsory license (aka mechanical license), which you can get here or www.songclearance.com/clearance. (If, on the other hand, you wanted to make some life-saving drugs then stop reading this and get on with it.)

“A mechanical license grants the rights to reproduce and distribute copyrighted musical compositions (songs) on phonorecords (i.e. CDs, records, tapes, and certain configurations). … Simply stated, if you want to record and distribute a song that was written by someone else, or if your business requires the distribution of music that was written by others, you must obtain a mechanical license.”
Harry Fox Agency, F.A.Q.

Copyright and compulsory license

A compulsory license is a provision of U.S. copyright law (section 115) which forces the copyright owner to make musical compositions available for others to record and broadcast. The copyright owner cannot deny usage but still gets paid a reasonable rate.

“In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section.”
USC 17 §115

Can I get a compulsory license for …?

Under U.S. copyright law, a compulsory license only applies to:

A compulsory license does not pertain to:

  • Photography, statues, writing or other artwork not listed above
  • Live music in a public setting such as a restaurant or bar (performance rights, see ASCAP, BMI and SESAC)
  • Lyrics in print or on the Web (print rights)
  • Music in advertising, movies and TV (synchronization ‘synch’ rights)
  • Music recorded by the original artist (master rights)
  • Sampling

Who do I pay the fees to?

There are several rights management agencies for compulsory music licenses:

  • The Harry Fox Agency (HFA) — “the foremost mechanical licensing, collection, and distribution agency for music publishers in the U.S.” Offers Slingshot.
  • Limelight (www.songclearance.com) — “The simplest way to clear any song”
  • RightsFlow by Google. Uses Limelight.
  • EasySongLicensing.com by Legacy Productions — “Legally record your version of any song in 1–2 business days”

“The Harry Fox Agency represents music publishers for their mechanical and licensing needs. We issue licenses and collect and distribute royalties on our affiliated publisher’s behalf. This includes licensing for the recording and reproduction of CDs, ringtones, and Internet downloads.”
Harry Fox Agency, F.A.Q.

How much are the fees?

In the U.S., the fees are 9.1¢ per copy (for songs less than five minutes long). The rates are set set by the Copyright Royalty Board.

“9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is larger, for physical phonorecord deliveries and permanent.’”
— U.S. Copyright Office, Mechanical License Royalty Rates

The licensing agency may add a per-song service fee of around $15. Limelight offers published rates (at www.songclearance.com/pricing/) and an online pricing calculator (at www.songclearance.com/clearance/calculator/).

“The royalty rate (what gets paid to the music publisher) is set by law and is known as the ‘statutory rate.’ …The statutory mechanical royalty rate for physical recordings (such as CDs) and permanent downloads is: 9.10 cents per copy for songs 5 minutes or less …”
Harry Fox Agency, Statutory Royalty Rates

Can I change the lyrics or arrangement?

Yes, as long as you maintain the overall character of the work.

“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 …”
17 USC, §115(a)(2)

Can I copyright my version?

You get copyright in your recording of the song, but not in your changes to the composition of the song. In copyright terms, your revised composition does not become a “derivative work.”

“… the arrangement … shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.”
USC 17 Section 115 (a) (2)

History

The concept dates to 1777 when France permitted the use of dramatic and literary works in theatre. France extended the right to music in 1850 and the U.S. adopted compulsory licensing in 1908, to prevent a monopoly in the piano roll market.

Provisions

Artists can make and distribute musical recordings of songs without the permission of the copyright holder under certain conditions:

  • The copyright owner must have already released or authorized the first recording (USC 17 §115(a)(1))
  • Notice is given to the copyright owner within 30 days of the recording and before distributing physical copies (USC 17 §115(b))
  • The end-user of the recording will primarily be listening for private use (USC 17 §115(a))
  • Royalties are paid at a rate set by three copyright judges (USC 17 §115(c))
  • The basic melody and character is not changed (USC 17 §115(a)(2))

“A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use …”
USC 17 Section 115 (a)

Note that the copyright owner can still control public usage (USC 17 §106(4)).

Collective rights management

If the underlying musical work is well known, the work can be licensed for public performance through a performance rights organization such as ASCAP, BMI, or SESAC. Radio stations don’t have to ask permission to play each individual song, but must pay usage fees to the copyright holders based on how often a particular song is played. Agencies that handle a variety of licensing are called rights clearance centers.

What is the actual law?

  • U.S. copyright law: Copyright Act of 1976; Performance Right in Sound Recordings Act of 1995 (DPRA); The Millennium Copyright Act (DMCA) (1998)
  • International copyright law: Paris Convention of 1883; Berne Convention (1886)
  • International patent law: Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) (1994); Regulation 816/2006 (2006) from the Doha Declaration

“Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work.”
Paris Convention 1883, Article 5A.(2)

“It shall be a matter for legislation in the country of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.”
Berne Convention, Article 13(1)

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