As any creative artist knows, few works of art are born of wholly new cloth. Not to get too philosophical, but most creative works are derivative of something that has been seen or heard before. The creative talent takes what he or she has learned and builds upon this base knowledge to bring forth something fresh.
The Beatles, Rolling Stones and other rock artists, of course, were heavily influenced by Blues and Pop music that came before them. Blues artists reworked musical phrasings from previous generations. Certain classical music is at the center of much American jazz. It’s all one big mash of previous influences that creates a new work of art.
Sometimes, however, a composer will take a previous work and filter it quite directly into the new work.
Music artists are not lawyers, and neither are music producers. So when these highly creative people compose something new, and they want to use a previously recorded work inside their new musical arrangement, what are the legal ramifications under copyright laws? Does the new artist own all of this new musical creation, or does the holder of the inserted work’s copyright now have some legal control over the new composition?
These are questions that we hear from music writers and producers with some frequency, and the truth is, it’s somewhat of a gray area in copyright law that can be confusing for all involved. Decisions in the court system often can be up to individual judicial or jury discretion. But there is written law surrounding this matter to guide such decisions.
Here is an informal guide for managing this tricky musical and legal matter.
How much can be used without permission?
Whenever you take pre-existing material and do anything based on that material, it’s technically a “derivative work.” This occurs as long as the work is “fixed in a tangible medium,” making it protectable under U.S. copyright law. The question then becomes whether the artist needs to license the pre-existing work to commercialize the derivative work.
Beware of any purported brightline rules on how much of a work can be used without consequence. You may have heard that you’re okay “as long as you don’t use more than X seconds” or “as long as you distort the original sound and add an instrument.” These are myths that usually stem from a butchering of the doctrines of fair use, scènes à faire, and de minimis use, each of which requires a fact-specific inquiry and merits its own blog post.
The sole thing we can say for certain is that you don’t need to get any kind of license to rearrange a pre-existing work if the pre-existing work is now in the public domain (i.e., no longer has copyright protection).
On the other hand, if the pre-existing work still has copyright protection, you will usually need to obtain a license for the musical composition. Songs that are typically referred to as “covers” are unlikely to implicate fair use, scènes à faire, or de minimis use. With respect to sound recordings, you don’t need to obtain a license for the sound recording if you’re recording a new performance, but you almost certainly would need a license for any samples of prior recordings, regardless of how much you sample.
To illustrate these various distinctions, just look at the Electric Light Orchestra’s 1973 version of “Roll Over Beethoven.” Why the ELO version? It actually includes roughly 40 seconds of Beethoven’s No. 5 Symphony, unlike other covers of Chuck Berry’s 1956 classic, such as The Beatles’ 1963 cover or Iron Maiden’s 1992 “Roll Over Vic Vella.”
When ELO recorded the cover, they didn’t need to worry about chasing down Beethoven’s heirs to license the symphony. The ELO song is still a derivative work of the symphony, but the composition for the symphony doesn’t have any protection — it’s too old, and so it has entered the public domain. And, because ELO recorded their own performance, they also didn’t worry about licensing anyone else’s recording of the symphony.
However, despite recording their own performance, ELO would have still needed to obtain a license from whoever owns the musical composition rights to the original Chuck Berry version of the song “Roll Over Beethoven,” whether it’s Berry, a publishing company, or a music label. The Berry version would not have entered the public domain when ELO was recording “Roll Over Beethoven,” and the original work remains protected to this day.
Mechanical licenses
One method of obtaining a license for the musical composition is negotiating with the person who has the rights to license the composition. However, that can certainly be burdensome for the artist. Thus, the compulsory/mechanical license route exists as an alternative. A mechanical license codifies the fact that it’scommon in our culture for musicians to cover, perform, or record other people’s songs.
With certain limitations, the mechanical license allows for an artist to take the pre-existing musical composition and to cover it, provided the artist pays the appropriate rate. If that’s the way that a license for the derivative work was obtained, then the artist needs to make sure that he or she is operating within the limitations of what’s permitted with a mechanical license, but the negotiation process can be avoided.
This only makes sense if the artist covering that original work wants to reflect his or her own style and may rearrange or make other adjustments to the song. Whatever pre-existing elements (whether melody or lyrics) are incorporated into the new composition, they are still legally owned by the original songwriter. Only the new elements and the new recording, with its new characteristics, would be owned by the cover artist.
The music video and “synch” and “master use” licenses
The biggest limitation of relying on the mechanical license in the modern music era is this: It doesn’t provide the right to “synchronize” the newly recorded music to video. That’s a huge limitation in the age of the music video, especially if the artistintends for the cover version to be used in a film. Instead, there needs to be a synchronization (“synch”) license, which can only be obtained through private negotiations. In turn, the difficulty of negotiations was exactly the reason for why the mechanical license was created in the first place.
For the sake of completeness, you may have also heard of a “master use license.” Whereas the synch license covers the musical composition, the master use license covers a sound recording.
So if you’re a filmmaker inserting previously recorded music into video, then you must have both the synch and the master use covered. If you’re commissioning a cover for the film, then you just have to worry about the synch license.
Sometimes, the owner of those rights is the same person, so you end up with a Synchronization and Master Use License. If the musical composition and the sound recording rights are owned by separate people, then you usually end up with two separate agreements.
Selling the new recording
Now, having created a derivative work, how can it be commercialized? If the musical composition is licensed properly (or doesn’t require a license), then the work can be exploited in all the typical ways, through the sale of records, streaming and so on. If it hasn’t been licensed properly, then it’s a practical question of whether you will be caught or pursued by the original artist. Copyright infringement has a three-year statute of limitations from the date that the copyright holder discovers the infringement. But the point is that a mechanical license has inherent limitations. If you choose to go the mechanical license method, you can’t exploit your derivative work outside of the permitted uses of the license.
What’s important here, though, is that when making a cover song, if your contributions to the new arrangement are new and not in the original underlying work, that new musical expression can be protected by copyright. But keep in mind that if another composer subsequently rearranges your new work, you can’tenforce your rights based on an infringement of the pre-existing material. You can only enforce your rights for the new material that you created.
What about cover performances?
If you’re covering material at a “legitimate” music venue, that venue’s royalty payments to ASCAP, BMI or SESAC will cover you legally for that performance. Even if a work has not been previously recorded by the original artist of the material, you are covered because your performance is legitimate under the venue license. This is why there are no issues with delivering tributes at a concert. However, once those tributes are recorded, a derivative work is created and that might need to be licensed if you want to sell it commercially.
Beware of Rules Relating to International Works
It has never been easier to have access to music from all around the world. If you decide to use a foreign (i.e., non-U.S.) work as your inspiration, additional rules may apply.
Notably, U.S. courts will defer to the ownership and authorship rules of the country of origin to determine who has rights in a particular work, but they will apply U.S. law to determine whether infringements have occurred. This can make a difference in several ways.
First, the duration of copyright protection can be different from country to country, which in turn would affect when a particular song may have entered the public domain. If the work entered the public domain under the laws of the country of origin, then the work would be available for incorporation into other works – regardless of whether it would still be protected under U.S. laws.
Second, some countries may have laws that give foreign performers and session musicians more rights than they would receive under the same circumstances in the U.S. So, even if under American laws an individual might not have the right to grant a license in a particular work, if the performer has the right to grant a license under the country of origin’s laws, then that license might be something that could be relied upon for cover versions of the song in the U.S.
Third, the choice of law question becomes especially important when holders of rights begin attempting to take down various works through the Digital Millennium Copyright Act (DMCA) notice-and-takedown protocol. Because the ownership of the work will be governed by the country of origin’s laws, works can be properly licensed from individuals who have the right to do so under foreign laws. In turn, there would not be a violation of the DMCA if the work was properly licensed. Knowing abuse of the DMCA notice-and-takedown provisions can expose the complainants to liability.
We’ve had experience working with intellectual property regulations of many countries around the globe, and we’ll be happy to serve as a resource for artists trying to navigate the international IP landscape.
