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Another Aside:
Cover Songs
Which brings us to cover songs. Why? This discussion seems to fit in here. The copyright owner can only prevent others from using the actual sounds on the recording or from sampling the sounds on the recording to prepare a derivative work. § 114(b) makes clear that the "exclusive rights of the owner of a copyright in a sound recording . . . do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in a copyrighted sound recording."
Example 6: DOA (Canada’s greatest Punk legends) want to cover the Edwin Starr hit "WAR". They may cover the song without the permission of the copyright owner by recording their version and not using any of the sounds contained on the original recording. If DOA includes portions of the original recording (sampling) in their version without permission the subsequent unauthorized use of the original material would be infringement and Edwin could recover. However, DOA’s awesome punk version contains only Joe Kiethley’s raw vocal styling. Edwin, presumably the owner of the copyright in the composition will receive a royalty –either a negotiated rate or the statutory rate found in § 115. The owner of the copyright in the original sound recording –the manufacturer and the person or persons who recorded the sounds –receive nothing.
Another example should clear up a few loose ends:
Example 7: Paul Weller, a member of the Jam composes the tune "going Underground" and records the song with the Jam. "Going Underground" is released in England at #1 and remains number 1 for 8 weeks in 1980. Flash forward to 1999 and Liam Gallagher, singer for Oasis, and friend of Weller, decides that the next Oasis record will contain a cover of "Going Underground." Liam meets with Weller to discuss the recording. They get into a huge fight over 20 beers and Liam pukes all over Weller’s mod shoes. Can Oasis still record the song?
Yes, assuming we are applying US copyright law to the problem. If we examine the copyrights from Weller’s point of view – he is the holder of 2 copyrights –one as a composer of the song "Going Underground", that is owner of copyright in the composition, and a second copyright in the sound recording as a member and vocalist of the Jam who recorded the song for release to the public.
If Liam wants to record the song he can license it from Weller for a negotiated fee. However, since he puked all over Paul’s shoes this is probably unlikely. If the negotiations break down, Liam can still cover the composition by forcing Paul to grant a compulsory license and paying the royalty. It is important to note that Liam is paying for the right to record the composition and not for the right to record the sounds that appeared on the Jam’s recording. The Jam can prevent the unauthorized recording of actual sounds from the record but have no say in whether Liam can cover the song. That right belongs to Paul as the composer who either negotiates the license or is forced to grant a compulsory license under § 115.
Example 8: Liam and Oasis record the song under a compulsory license and change all the lyrics but none of the melody. Can Oasis now claim a copyright in the new arrangement?
No. In order for Oasis to claim a copyright in the new arrangement they need Paul’s permission. Why? Weller has, as one of his exclusive rights, the right to make and prepare derivative works. Since the new lyrics by themselves would be copyrightable, Liam would be the owner of the lyric copyright. Liam would not however, be able to copyright both the lyrics and the music together without Paul’s permission. In all likelihood, Weller would probably wipe the puke off of his shoes and grant that permission in exchange for a royalty in the new song.
Example 9: Liam and Oasis are still pissed at Weller for being such a puke sissy and record the "Going Underground" cover as an "I Hate Paul Weller" anti-anthem. What can Paul do to stop this outrage?
Weller can revoke the license under § 115(2). § 115(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, and shall not be subject to protection as a derivative work . . . except with the express consent of the copyright owner. If Paul successfully revokes the license and Oasis releases the record anyway, then Oasis is liable for infringement under § 501.
Back to our Regular Program:
Finally, the "magic bundle" includes:
The right to Display the work publicly – 17 U.S.C.A. § 106(5) This right is not very broad and permits the owner of a copy of the work, lawfully made, to display the copy publicly either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. 17 U.S.C.A. § 109 (c)
This right does not seem to have much application to sound recordings since the display right only applies to things that can be seen. It still applies but there is not much application for audio recordings.
Conclusion
Copyright law provides powerful but limited protection for owners of copyrights in sound recordings. In particular, the "first sale doctrine" and the "no right to public performance" limit the scope of the potential value of the copyright owner’s work. That is, there is potential to earn more money from a copyrighted work but Congress has decided that this must be balanced against the public’s access to the copyrighted material. While these limitations prevent complete control of the copyrighted work by the author, the remaining rights in the "magic bundle" are valuable to the owner and prevent the unauthorized copying and use of a sound recording. As we shall see in another article the full protection of the Copyright laws begins not at "fixation in a tangible medium of expression" but at registration. While registration is not necessary for copyright protection it is clear that the Copyright law rewards those who comply with the formalities of registration.
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