No Infringement Intended: Can My Band Cover a Famous Song? A Look at Copyright Law in Music

The thrill of a band putting their own spin on a beloved song is undeniable. But even more thrilling? Telling someone a song they love is actually a cover. Today on No Infringement Intended, we look at the example of Luke Combs’ chart-topping “Fast Car”, which is actually a reimagining of Tracy Chapman’s 1988 classic.

Regardless, behind the respectful nod to re-record an iconic musical number is a complex web of copyright law. Can a band simply cover another famous song, or are there legal hurdles to overcome? The answer lies in understanding the unique rules governing musical copyrights, particularly the concept of compulsory licensing.

The ‘Bundle of Rights’ and the Dawn of Mechanical Music

Copyright law grants creators a “bundle of rights,” empowering them to control who uses, distributes, or performs their work. Traditionally, this made perfect sense for published works and sheet music, where control was relatively straightforward. The concept of recorded music changed all of this.

The 1909 Copyright Act was born from a time when the phonograph was a revolutionary technology, grappling with the concept of “mechanical music.” Congress faced intense lobbying from both composers and publishing houses, who sought to protect their rights, and recording companies, who aimed to foster innovation.

John Philip Sousa famously testified before Congress, decrying the “menace of mechanical music” and warning that technologies like the phonograph would replace “human skill, intelligence, and soul.” Sound familiar? It echoes the modern debate surrounding artificial intelligence and its impact on creative industries, and even the recent discussions around artists’ rights and technology, like when Taylor Swift stood against big streamers. Great minds, it seems, often think alike.

On the other side, representatives from the Victor Talking Machine Company argued for a balanced approach that would allow the recording industry to flourish while ensuring fair compensation for creators.

This debate resulted in the introduction of compulsory licensing for mechanical rights.

Compulsory Licensing Becomes Law

Under compulsory licensing, a copyright owner cannot prevent someone from recording a cover version of their song, provided certain conditions are met. This deviates from the typical copyright rule, where the owner has absolute control over licensing. Here’s how it works:

• The song must have been previously recorded.
• The copyright owner retains control over the first recording, and you cannot cover a song that has never been officially released.
• The covering artist must also serve a “notice of intention” to the song’s owner, informing them of their intent to record a cover. This notice must be filed within a specific timeframe and contain all required information.
• The covering artist must pay a statutory royalty rate, which is set by a designated body that reviews and updates the rates periodically.
• Finally, the covering artist must provide regular accountings of their sales and distributions.

This system ensures that copyright owners are compensated for the use of their work, while also allowing for the widespread creation and distribution of cover songs.

Deviating from the Norm

Several nuances and considerations come into play once the cover song process has begun.

Live performances: Compulsory licensing primarily applies to recorded music. Live performances of cover songs are typically handled through performance rights organizations like ASCAP, BMI, and SESAC. A great example of this is Kelly Clarkson, who is widely known for performing numerous covers during her live shows and appearances. These performances fall under the licenses held by the venues or broadcasters. However, when Clarkson compiles and releases these covers as part of her ‘Kellyoke’ EPs, she must obtain separate mechanical licenses for the recordings, which shows the clear distinction between live performance rights and those required for recorded versions.

Commercial use: If a company wants to use a popular song in a commercial, compulsory licensing does not apply. They must negotiate a separate license with the copyright owner, who can set their own terms and fees.

Longer songs: When a band like Phish extends a song with long jams, the royalty calculations can become more complex. The statutory rate accounts for approximately five minutes of song duration, and longer performances may incur additional charges based on the per-minute rate.

Rate changes: The statutory rate is subject to change every few years, reflecting factors like inflation and industry trends.

The Enduring Relevance of Compulsory Licensing

Compulsory licensing represents an interesting solution to the challenges posed by evolving music technologies. It balances the rights of copyright owners with the greater desire for creative expression and innovation.

As technology continues to reshape the music industry, the principles of compulsory licensing will likely remain relevant. From the dawn of recorded music to the age of streaming, this system has adapted to ensure that both creators and consumers can benefit from music.