Mechanical license

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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 two distinct copyrights. There is (1) the copyright of the composer’s actual sheet music (the “musical work”) and (2) the copyright in the actual sound recording known 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 not yet developed.) 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 granted by the holder of the underlying musical work for 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.

E.g. Puff-Daddy wishes 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. What he now has is the right to reproduce all or part of “Every Breath You Take” in his new song. What he CANNOT do is 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. In order 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 is copying his sample. He is free to hire a guitar band to reproduce the Police's sound down to the nearest note, 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. Other commercial agencies such as RightsFlow (via the Limelight online mechanical license form utility) and easySongLicensing.com also issue compulsory mechanical licenses. Harry Fox Agency and the other commercial agencies collect and distribute the royalties, plus they collect a per-song service fee of roughly $15.

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.

This license is often used for the purpose of self-promotion. For instance a cellist who performed a musical work on a recording may obtain a mechanical license in order to distribute copies of the recording to others as an example of his cello playing. This is also used by recording artists performing cover versions of songs and artists who do not typically write their own songs, as is typical in Country and Pop music. 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 an artist who is recording and distributing his/her own completely original work.[3]

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

See also[edit]

Notes[edit]

  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.