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.”