Prince and the Copyright Compulsory License Scheme

By Beth Hutchens
May 10, 2011

Imagine a world where the dulcet tones of “Inagaddadavida” never graced the airwaves.  Gasp you should!  According to the artist currently known as, but formerly known as “The Artist Formerly Known as, Prince,” once a song is covered the original artist’s version doesn’t exist anymore.  Soooo…Iron Butterfly’s iconic song no longer exists because Slayer remade it in the late 1980s. Yeah, I don’t think so, but let’s explore, because Prince does make an interesting point and he’s kind of right to be miffed, even if it’s for the wrong reasons.  He was talking about the compulsory licensing requirements in copyright law and the “original work is banished to music purgatory once it’s covered” argument is his way of explaining his indignation.

I doubt the Purple One spends much time perusing the Copyright Office’s circulars or exploring the Department of Justice’s (“DOJ”) website but, fortunately, I do.  Basically, in copyright, a compulsory license is an exception that allows a person who does not own, and did not create, the subject matter of the copyright to exercise one or more of the copyright holder’s exclusive rights without having to obtain permission.  In English, the “license” part means a person can cover any song he or she wants to and the “compulsory” part means the copyright holder and/or original author can’t say “boo” about it.   

An important place to start with this topic is the fact that, contrary to popular belief, the compulsory license is nothing new nor is it limited to copyrighted music.  There are several different compulsory license schemes in copyright as well as patent law.  And, For the most part, the compulsory licensing system in intellectual property was born out of antitrust law.  Federal courts have recognized that compulsory licensing remains “a relevant remedy in some cases” (the wisdom of which I won’t question here, simply because I don’t have the time or space). The DOJ’s Antitrust Guidelines for licensing of intellectual property are for the purpose of “apply[ing] the same general antitrust principles to conduct involving intellectual property rights that they apply to conduct involving any other form of tangible or intangible property.” From a purely intellectual property viewpoint, there is a tendency to view intellectual property and antitrust as at odds with each other (again, the wisdom of this sentiment I will not question here).  The important thing to note is that it is out of this antitrust/fairness sentiment that the compulsory license was created.

The antitrust issues are more keenly noticed in patent compulsory licenses, so I can’t really delve too much into that aspect and stay on topic.  Suffice it to say that the courts have been all over the place with it since the 1950s, where they went super draconian (A district court broke up a light bulb cartel and required GE to issue “free” licenses to its competitors, the result of which obliterated GE’s light bulb patents. See United States v. General Electric Co.), to the 1980s with outright criticism (Compulsory licensing of patents often has been proposed, but it has never been enacted on a broad scale. See Dawson Chem. Co. v. Rohm & Haas Co.).  But, with the exception of that doozy of a case United States v. Microsoft Corporation (Compulsory licensing relief will further efforts to ensure that there remain no practices likely to result in monopolization in the future), the issue has remained pretty quiet. 

But, as always, copyrights are kind of a different story.  Copyright compulsory licensing is addressed more frequently by the courts and, again with the exception of Microsoft, the issues don’t really revolve around antitrust.  The standards are codified in 17 USC §115 and summed up quite nicely in Circular 73 of the United States Copyright Office and the 2004 statement by the Register of Copyrights.  It basically works like this: Section 115 of the Copyright Act allows a person to distribute a new sound recording of a previously distributed musical work under the authority of the copyright owner. The copyright owner MUST allow the person to do this, hence, giving a compulsory license.  The new recording doesn’t have to be identical to the previous work, because the license includes the privilege of rearranging the work to conform it to the new artist’s interpretation. In order to take advantage of the compulsory license, however, the covering artist can’t change the basic melody, has to pay the licensing fee, and has to provide notice to the copyright owner or the Copyright Office within thirty days of making the recording and before distributing physical copies, or else he’ll get nailed for infringement.  Basically, it’s like giving carte blanche for anyone to prepare a derivative work of a song as long as they put the author on notice and pay the fee.  But the owner of the copyright in the underlying musical composition does still control public performance of the work and music sampling is NOT subject to the compulsory license.

Question: Why do we require musicians to allow derivative works when it’s not required of authors or sculptors?  Don’t get me wrong, I love Prince’s falsetto screech as much as the next person, and while there will always be a special place in my heart for “When Doves Cry,”  I’m not opposed to hearing a new rendition of it.  And I can assure you Bob Dylan’s “All Along the Watchtower” is quite good and still exists even though Jimi Hendrix’s remake of it is way better.  Be that as it may, who are we to say Prince, or any other musician for that matter, MUST allow someone to take a crack at the original song?  Authors don’t have to permit fan fiction, so why do musicians have to permit covers?

Proponents of the compulsory license argue that, without it, thousands of really good covers couldn’t have been made.  True, but without it, thousands of crappy covers also wouldn’t have been made, so let’s call it even.   There is also some suggestion that cover bands would be illegal, but this improperly presumes that no artist ever would permit a cover and ignores the fact that one of the most important rights a copyright holder has is control over the work.  Some advocacy groups have even suggested compulsory licensing as a possible solution to digital piracy, e.g., those who hold the copyrights for the music traded on P2P networks would be legally barred from suing the infringers, while the government would extract payments from listeners, and music industry groups would be left to distribute these royalties to the rights holders.  That argument almost made my head explode.

I think what Prince was trying to say is that a cover song can distract from the original creator, especially if it’s more popular than the original.  Creation of the derivative song can result in the public thinking that it was the cover artist who wrote the song, not the actual author.  It’s an interesting theory that may have some teeth, but there is empirical evidence that suggests cover songs actually drive up the market for the original.  When the “Glee” kids covered Rihanna’s song, “Take a Bow,” some sources indicate sales for the original version shot up 189%.   Other opponents of the compulsory license argue that when a person does a cover, he or she is just some newbie trying to generate fame from someone else’s hard work.

Theoretically, the only way to get good recognition is to do a new version of a song that everybody knows.  Case in point – Sinead O’Conner’s version of “Nothing Compares 2U” was a huge international hit that launched her career while Prince’s version (he actually wrote the song) is relatively obscure.  There is also some talk that wresting control of derivative works from the author has, and will continue to, release a cadre of horrible cover songs that besmirch the original and subject our ears to a frontal assault worse than barking dogs and leaf blowers combined.  I’ll give you that, but it does improperly focus on the artistic merit of a song, something copyright law decidedly does not, and must not, do.  Even if Miley Cyrus murdered covered Nirvana’s “Smells Like Teen Spirit” a couple of weeks ago. 

Under copyright law, one of the most important rights granted to the author is the exclusive right to create derivative works.  The thing to focus on here is that the compulsory license scheme usurps one of the most important rights an artist has and donates it to the public.  The compulsory aspect of the license effectively limits an author’s bargaining power and takes away the ability of the author to say who may use the work and on what terms.  How does wresting control of derivative works from the copyright holder and handing it to whoever wants it square with the rest of copyright law?  And how is requiring musicians (and not other artists) to permit any and all derivative works not a huge double standard? And no, advocacy groups; tossing the author a licensing fee does not remedy that.  You’re still taking an important right from the owner, giving it to the public, and defending that action with some weird greater good argument

If a standard is to be applied it must be applied evenly. Removing the compulsory license scheme would vest the right to control derivative works back into the hands of the copyright holder, where it should have stayed all along.  Remember, one of the rights of a copyright holder is the right NOT to permit exploitation of his or her work.  So if Prince doesn’t want others covering his songs, why should he be forced to?   JK Rowling is not required to permit fan fiction, so why should musicians be forced to permit covers? Admittedly, Prince’s theory that a cover means the original song no longer exists is a little wacky, but he’s right to point out the inherent unfairness.

Quick, someone call Congress and have them get on this before Justin Beiber decides to cover “Welcome to the Jungle.”

The Author

Beth Hutchens

Beth Hutchens is a contributing author on IPWatchdog.com. Beth’s recurring, feature column typically focuses on Internet, trademark, copyright and/or privacy issues. She brings her unique perspective and witty writing style to subject matter that could otherwise be dry. Her insights, along with a “take no prisoners” attitude, work to provide a fun, entertaining and always informative column.

When not writing she is an attorney based in Seattle, Washington. can be reached at beth.hutchens@gmail.com.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 18 Comments comments.

  1. dida May 10, 2011 12:19 pm

    I find it strange that a copyright lawyer should describe a compulsory licence as “exception”, it is not according to the Berne Convention, or national copyright laws. If it was an exception no licence would be required. An example of an exception in US copyright law would be Section 121 which limits the exclusive rights of copyright owners with respect to copies made for blind or other people with disabilities.

  2. Gene Quinn May 10, 2011 6:58 pm

    dida-

    What seems interesting is that you are playing a semantic game and then in a back-handed way suggesting that Beth doesn’t know what she is talking about. You can pretend and play games if you want, even act superior, but the reality is that compulsory licenses are, in fact, exceptions to the exclusive rights of a copyright owner. Perhaps you are not familiar with exclusive rights, but ordinarily that means the owner has what is referred to as the right to exclude. When a countervailing right in a copyist exists contrary to the copyright owner that would be an exception to the exclusive nature of the right. Whether the Berne Convention or the emperor of all copyrights chooses to characterize this as something other than an exception simply doesn’t change reality.

    -Gene (via iPhone)

  3. Bobby May 10, 2011 8:40 pm

    Gene,
    ‘Exception’ is a rather odd way of putting it. The change with the Copyright Act of 1909 and the introduction of mechanical licenses was a strengthening of copyright, not a weakening. While Beth has made the claim that a compulsory license “usurps one of the most important rights an artist has and donates it to the public,” the artist has never had that right, at least as far as I can tell regarding federal law, and the shifting of rights would be the authors gaining additional rights at the expense of the public. The difference here is that the industry at the time didn’t get quite as much as they wanted.

    As for the supposed incongruity in fields, the given examples of authors and sculptors are generally not performance arts, so an exact parallel does not exist. Live theatre and film are performance arts, so that is where a proper comparison might be drawn, but even then, drawing exact comparisons to those fields would be quite difficult.

    Also, I would love to have the full text of what Prince has said on the subject, if you or Beth don’t mind providing it.

  4. Jason C May 10, 2011 8:51 pm

    Beth or Gene – Regarding the licensing fee, I am curious how the fee is determined, and whether it ends up being commensurate with what the author would normally get in a free market, for example. However, whether the fee is reasonable or not, I agree that it seems unfair to force an author to license their song for covers. Also, what if the cover artist only copied the basic melody, but changed everything else (tempo, instruments, lyrics, genre, etc). Is it possible that the work could become so transformative that the cover artist could not longer claim the exception (i.e., meet the compulsory license requirements) despite copying the melody? Have there been any cases to address these fine line situations with regard to the compulsory license requirement?

  5. Gene Quinn May 10, 2011 10:57 pm

    Jason-

    Unable to provide a cite at the moment, but the song really needs to be a cover song with little change. The artist doing the cover can change the genre, so a country tune could be turned into a rock version in the artists style, but it could not be a derivative work. Of course, there is fair use to contend with that complicates the analysis a bit (think Campbell v. Acuff Rose— the 2 Live Crew case). There is a formula and the monies need to be Paid according to that formula. It has been a while since I’ve looked at the formula though.

    -Gene (via iPhone)

  6. Gene Quinn May 10, 2011 11:05 pm

    Bobby-

    Exactly who do you think you are to define what is or is not an appropriate comparison? time and time again you demonstrate little useful understanding of intellectual property law.

    So artists have always had the right to do cover songs? Really? Wow! How interesting. I did not know that. But— wait a minute. How is that possible when copyrights have been authorized in the US since 1790 and recording voice was invented until way after that, and the recording of music even way further after that. Did the founding fathers anticipate bands would want to do cover songs and draft the royalty payment provisions way back in 1790?

    -Gene

  7. Jaydeep10000 May 10, 2011 11:15 pm

    Prince’s perspective on this matter is strange in that appears as though he wants people to recognize his songwriting skills. Take for instance songs like Nothing Compares 2 U or I Feel For You; these songs were hits by other artists that covered his original. Prince’s compositions were great but there were several other factors that made those songs ‘hits’ – the artist and their marketability and that moment in time were critical to the success of the song as a commercial product.

    Prince also spent a glorious amount of time during the 80s attempting to create a mystique surrounding him and his musical strengths. Granted the guy is a fantastic musician and was once a powerful songwriter, he didn’t always put his name as the songwriter in the linear notes. In fact, songs like The Glamorous Life are credited to fictional characters he created to build a mystique. He’s responsible for a lot of the misunderstanding the public has of him and his music – the latter seems to be very important to him.

    I hope Prince one day loses the time to focus on the downside of the record industry and recognize that Warner Bros. put a lot of time, effort and faith in him and his projects back in the 80s. He flooded his market during the 80s and 90s and as a result, struggled to maintain the same level of commercial success that he had with Purple Rain. The guy is a spoiled rock star and doesn’t seem to recognize that there is a business component to it all – the same component that allowed him to release a record a year, buy his Paisley Park recording studio, tour every year with more and more elaborate stage designs, costumes, instruments, etc, etc, etc.

    Good luck Prince!

  8. Bobby May 11, 2011 1:16 am

    Gene,
    “Exactly who do you think you are to define what is or is not an appropriate comparison?”
    Someone capable of understanding that some arts are performing arts and some arts are not. Books of prose are meant to be read, and are generally not a performance art. Sculptures are meant to be looked at and are generally not a performance art. Composed musical pieces are meant to be performed and are a performance art. Plays are meant to be performed and are a performance art.

    “So artists have always had the right to do cover songs?”
    Artists have always had the capability of playing music written by others. That’s why buying sheet music was not a useless act. Playing non-original compositions is a typical part of learning to be a musician. What artists have not always had the is the technological capability of doing was recording performances, but it was decided in White-Smith Publishing Co. v. Apollo Co that mechanical recordings were not copies as defined by statute at the time, and I would presume that they were not covered by the 1790 copyright act either. So yes, artists have always had the right to do cover songs, even though they lacked the technological capability to do so in the strictest interpretation of the word. The change in 1909 was the addition of a limitation where there previously was none.

    As you’ve noted, “whether any specific category of “Writings” is to be brought within the purview of the federal statutory scheme is left to the discretion of the Congress.” Congress’s discretion in 1909 was to only extend coverage weakly in regards to recordings as copies or derivative works of composed pieces.

  9. New Here May 11, 2011 11:26 am

    @Beth Hutchens

    I have read your article and enjoyed it, though I must say to the best of my understanding of some parts, having no background in law. In the article the mention of GE and the Court decision that impacted GE’s light bulb patents, has me thinking about this and I would like to ask a question.

    Copyrights as patents are bought and sold and I will not consider the reasons why here. Ownership I feel comes into question when rights are bought and sold as well, rights that are embodied within both copyrights and patents. Such rights over time are lost in subtle ways. Edison made some great inprovements with light bulb technology in his day, technology that today gos beyond but Edison’s contributions live in the technoloy even if only remains as some influence.

    The question circles the exchange that is made with rights of copyright and/or patents. Exchange that an orignal creator rights are lost after a number of such exchanges that creates confusion in my opinion. Confusion about rights passed to different owners (being sold) often with many other creators being owners of copyrights and/or patents become involved in a work over time.

    So, hopefully I gave the background to this two part question.
    First, I ask in your opinion, did the Court consider any “confusion” about rights passed to different owners (copyrights / patents) over years that GE may have bought copyrights and patents that questioned GE’s claims on light bulbs technology. Confusion that led GE being forced to share. That the court maybe was unable in a manner to validate or deny GE’s claims within such copyrights / patents while any such “confusion” ?

    Opinion: It seems rights as those granted by copyright / patent law to protect orignal creators work are lost anyway when exchanges as changing owners occures. The court may have found some abiguity about whos-who when considering owners and rights.

    Second, what is the law that deals with exchanges (as I call it) meaning the of change of ownership of protected works and the rights to them. Ownership and rights granted by copyright / patent law.

    Thank you.

  10. Beth Hutchens May 11, 2011 3:13 pm

    Sorry for the delay in response. Thanks, @gene for answering in my stead. Couldn’t have said it better myself, but….

    @Dida I use the term exception in the vein of “something excepted; an instance or case not conforming to the general rule.” e.g., generally, a copyright holder has several distinct rights, the right to control derivative works being one one them with the exception of the compulsory license, which is an exception to that general standard. Gene is right- semantics. Call it whatever you want. To me it makes no never mind as long as the point gets across.

    @Bobby the performance right is not tied up in the compulsory license. That is a right the holder retains. This is why I used sculptors and authors as a congruent idea. Fan Fiction is a derivative work the author is not required to permit them. I was using an analogy. Prince’s interview was on the George Lopez show. Here ya go: http://bit.ly/eYDeKE

    Rethink your stance on the performance rights versus derivative works. We are talking derivative works, not performing rights. And yes, there was a time when this right was in the hands of the copyright holder. At least up until about the 1950s or 60s. The compulsory license usurps an important right once held by and requires the musician relinquish it.

    @Jason the fees are determined statutorily. Check the copyright office for a current fee schedule. Gene is correct as to the remainder of your question. Check the statute for the cite on requiring very little change in the work. If the cover song changes too much, that would be violative of the terms of the license and be more akin to infringement and a fair use defense type of situation. I think the big case on that one (there are several) is Acuff Rose v. Campbell, where the 2Live Crew used Roy Oribson’s Pretty Woman tune, but changed the lyrics.

    @Jay Yes, he is notorioulsy controlling of his music and has a bit of a reputation for being….rather odd. Still, I guess we should thank him for giving us an opportunity to explore an interesting topic! 🙂

    @New You seem to be bleeding together copyright and patent concepts, which are two very distinct and very different bodies of law. Be very careful about applying the standard of one to the other. So with that, as to your question, I’m not quite sure I understand what you are getting at when you are asking about confusion, which is a decidedly trademark concept. I don’t know of any precedent, patent or otherwise, where a court ruled that confusion as to ownership of those rights was grounds to, without more, nullify or transfer them.

    In terms of ownership, look to contract law, assignment, licensing, and transfer rules, which can differ depending on the area of law and the jurisdiction as well as, on occasion, balancing state versus federal interests.

  11. Bobby May 11, 2011 4:46 pm

    First of all, thanks for providing the Prince link.

    “And yes, there was a time when this right was in the hands of the copyright holder. At least up until about the 1950s or 60s”
    Do you care to specify further? There may be something I’m missing, but it appears that SCOTUS decided piano rolls and other mechanical reproductions were not ‘copies’ under current statute and thus not in violation, and the 1909 act introduced the compulsory license, making no period exist where the law prevented the recording of a musical piece that had already been recorded and published. If you claim such a period exists, I must ask you what you think that period is.

    “Rethink your stance on the performance rights versus derivative works. We are talking derivative works, not performing rights”
    As far as composition goes, the strict terms of compulsory licenses make it in a very certain sense not a compositionally derivative work. The melody is not derivative and my understanding was that, at least in practice, allow changes to the lyrics are only include very elementary differences, such as switching genders. Thus, you could argue that the cover is merely a different rendition of the same song. In order to truly be a derivative work, it would have to be a different song, like for example, “U Can’t Touch This” is a derivative work of “Superfreak.” Hopefully you can understand what I’m saying here. It’s a bit of a complex subject, and I can understand the argument of how one could conclude that a recording is a derivative work.

    I think where the strangeness comes from is differences in culture now and over a century ago, including how the ‘music industry’ has shifted from sheet music to musical recordings, thus removing a lot of the distinction between composition and a specific performance from the public perspective. If we were partying like it was 1899, then Prince’s argument might seem strange to us. I would think having a song be very popular without being played by a variety of people would be hard to do back then, and there inherently be differences in the way different people played it.

  12. New Here May 11, 2011 5:39 pm

    RE: 10

    @Beth Hutchens

    Thank you for the reply.

    “New You seem to be bleeding together copyright and patent concepts, which are two very distinct and very different bodies of law. Be very careful about applying the standard of one to the other.”

    I understand, and again I thank you.

  13. Beth Hutchens May 11, 2011 6:01 pm

    @New you’re welcome.

    @Bobby, no problem. And thank you for the 1899 reference. “1999” is going to be going through my head for the rest of the day. CURSE YOU, BOBBY!!! 😀

    But I see where you’re going with the idea that the right was never in the hands of the holder. All I can say is that it’s not exactly the same thing. The difference is that the 1909 issue landed with the idea of taking a particular music work, a record, for example, and making a piano scroll of the exact same song. Here, the issue is requiring a musician to permit someone else to make a new rendition of his song, which is why I call it a derivative work. The 50s and 60s is when we started seeing rumblings about modernizing the concept and we start to see the evolution of the statute as we know it.

    Yes, you can’t change the melody and the words, but well, if you did that, it wouldn’t be a cover song. It would be a new song. A different, but not exact, rendition of a work is, by definition, a derivative work. The reason I use fan fiction as an analogy is because it seems to be the closest scenario. Harry Potter, He-Who-Must-Not-Be-Named, Hogwart’s and many other characters are all sufficiently unique of JK Rowling’s work, copyrightable, and therefore, one must get her permission to write a story featuring those characters. One does not need her permission to write a book about a boy wizard though. In terms of music, the melody and lyrics are unique to that song, but rather than get permission to do a song featuring those copyrighted-in-every-other-way aspects, a musician just goes ahead and does it. But the musician does not require permission to write a song, say, about partying like it’s the end of a century. Again, there is a double standard that we see only with music.

  14. Bobby May 12, 2011 10:39 am

    “A different, but not exact, rendition of a work is, by definition, a derivative work. ”
    That’s why I was trying to be careful with my words. There are certain aspects in which it is a derivative work, but looking at it compositionally from a very narrow viewpoint, it is the same song, which could be part of why full protection was not extended, as well as not stifling the growth of this new and exciting technology of recorded music.

    I will agree that the treatment of music is not identical to the treatment of other fields, but I’m not sure I would consider it a bad thing, and if it is, it doesn’t mean that the fault is in the permissiveness of copyright on music. What works best for one field may not be what works best for other fields. Aside from upsetting Prince, I think the compulsory license has worked out quite well. You acknowledge that it has let us have a lot of wonderful covers, which has a lot of social value. I will also acknowledge that a lot of covers have been quite awful, but I don’t think that offsets the good covers any more than the existence of horrible songs offsets the existence of wonderful songs.

    I also suspect that compulsory licensing has not discouraged any significant amount of songwriters from writing songs. However, I’m quite sure that it has probably enabled quite a few careers that have led to many great songs being written.

  15. A New Friend May 12, 2011 12:54 pm

    Beth – Your post was so well written and thoroughly enjoyable, that I easily will be able to carry away a deeper understanding of derivative copyright musical work. I also just subscribed to your blog (never heard of you before this) ’cause you made this so interesting. Other an being historic, do you think there is any good reason why there is compulsory licensing of derivative copyright musical work? I’m thinking that the law makers were thinking of the ease at which some songs are written (Personally, I’m getting tired of hearing a Beetle chime up and say about one of their hits, “Yea, I wrote that in 20 minutes while sitting in me loo.”). As for music sampling, that’s kind of like saying its OK to take a gold nugget from a gold mine without paying compensation and justifying it because you are not taking the entire mine.

  16. New here May 13, 2011 11:18 am

    Music like the Movie industry could have changed their business model of how they distribute and sell years ago, but didn’t . As of the advancement of high-speed Internet technology these industries have been playing games and engaged in what is abuse of customers rather then spend the money to gain more control over the works they distribute. They continue to make works available over old business models that continue to show that they don’t work.

    Technology as but not limited to high-speed Internet, has been a problem for these industries that just less then ten years ago if one Bill in Washington at the time had passed into law, would have just about killed most of all technology advancement for consumers. Technology that these as well other industries use that most likely would have been only available to them and not consumers — by law if they had their way.

    Consumers as I am one, remember well back in the ’70s buying music (in the form of that day) , playing to find that some real odd-ball songs were included on what was then a top priced record label album. Modern technology has changed this today, however back then it was having consumers buying music paying the record label cost to produce what many times turned out to be a dud.

    The option to sample music as watching a preview of a movie, is giving a consumer a choice not to buy something they don’t want to buy. I believe that the tiny samples offered in music stores today fail to give the consumer enough time with, in my opinion, the hope that the consumer buys on impulse rather then real choice. It is choice that is no secret that these industries could have built alt-business models selling at a cost that would have been selling music / movies for years before now. Consumer technology as any other is open for uses that some make the choice to do things that they shouldn’t. The law should address those choices without consumers that pay for what they want paying another price as well.

  17. TINLA IANYL May 13, 2011 11:56 am

    With Fair Use as a defense to Copyright Infringement in the case of, for example, a spoof of a song, I think it might help to recall that, even if the compulsory license statute were eliminated, a Constitutional Amendment would still be required to prevent an artist’s work from being covered in those cases where it is likely that the artist would most strenuously object. The compulsory license statute affords an avenue for artists to cover others songs without getting into a court battle every time over whether or not it is fair use. In my view, the compulsory license statute is justified as a practical compromise that avoids both the potential to unfairly limit free speech, and unnecessary waste of resources.

  18. Beth Hutchens May 17, 2011 5:14 pm

    Hi All,

    Sorry I’ve been away for a bit.

    @Bobby at this point we’ll just agree to disagree. It doesn’t sound like we’re arguing any major substantive issues (as we have in the past), just looks like we have philosophical differences as to the merits of the license itself. So…well met, friend.

    @New Friend thank you for the compliments. And thank you for wanting to hear more of my rants. But at this point, better to follow me on twitter. I haven’t had time to do much with my office’s blog of late while I post here as often as possible- more readers. With that, the sampling issue is a topic in and of itself that I may delve into later, so lets skip it. As for the reasons for compulsory licensing, the reasons really are the antitrust issues. As to why only for music and no one else? II don’t know. Maybe it’s because music, as has been suggested in the comments here, is a bit different due to the technological advances in making copies of the work? That or there’s some vast conspiracy theory involving elected officials and the RIAA. And Disney. Always Disney. LOL

    @TINLA While I disagree with you on the appropriateness of the license, I am glad you brought up the fair use defense. It is a good point, and one that we must remember, as there as a tendency to blur sampling and the compulsory license. A big NO NO!

    Thanks everybody!

    Until the next rant -ahem- article…
    Beth