When a musician desires to record a cover version of a song (i.e., their own version of a song written or made famous by someone else), the process for obtaining the rights to do so is quite simple: they obtain a mechanical license—a compulsory license that can be obtained by paying the appropriate fee to the copyright holder or their representative—but only after the copyright holder has exercised their right of first publishing. And that’s all there is to it. The artist records their version of the song, releases it into the world, pays royalties to the copyright holder, and, so long as they have abided by all the aforementioned steps, they likely do not run into any issues relating to this process. This process is simple, but in a time where musicians liberally borrow material from others and the resulting songwriting credits read like novellas, it creates issues in a discrete subset of cases.
17 USC § 115(a)(2) provides that
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 under this title, except with the express consent of the copyright owner.
Under this provision, arrangements of musical works prepared under mechanical licenses do not receive copyright protection unless expressly granted by the copyright holder. For most musicians preparing recordings under this type of license, this is not a very concerning issue—they still retain a copyright in their sound recording, and they are likely to be the only users of their arrangement. But consider the following situation:
What happens here? The arrangement is not provided copyright protection, but the new artist has to credit someone for the ideas that they repurposed in their new song. So, the songwriting credit for the portion borrowed goes to the original songwriters, even though they were not involved in writing the particular musical ideas.
Consider the following real-life example in order to understand the strange results that occur in these situations. In 1979, “And the Beat Goes On” was released by The Whispers. In 2002, “Reggae Beat Goes On,” a reggae cover of “And the Beat Goes On,” was released by Family Choice. Then in 2019, “How Long?”, a song containing elements of “Reggae Beat Goes On,” was released by Vampire Weekend.
“Reggae Beat Goes On” is a cover of “And the Beat Goes On,” and uses a very original arrangement in order to shift the genre from disco to reggae. The melody and lyrics remain the same and the chord structure is nearly the same as well, but the rest of the musical setting is different. “How Long?” takes elements from the musical setting of “Reggae Beat Goes On” and interpolates them in the new song. Namely, the guitar part from “Reggae Beat Goes On” is played on bass guitar in “How Long?” There are string parts brought over to “How Long?” from “Reggae Beat Goes On,” and the chords in both songs match as well.
Who are the credited writers for “How Long?”? There are five: Ezra Koenig, member of Vampire Weekend; Ariel Rechtshaid, producer of the record; and William Shelby, Stephen Shockley, and Leon F. Sylvers III, all writers of “And the Beat Goes On.” Bill Campbell, arranger of “Reggae Beat Goes On,” receives no songwriting credit for “How Long?” despite having written the external elements that are present in “How Long?”, while Shelby, Shockley, and Silvers receive credit despite not having written the material that was borrowed.
The result here seems absurd—the people receiving credit (and thus, also receiving royalties) did not actually write the borrowed material. However, the result is somehow in line with the purposes of and justifications for US copyright law. US copyright law is explicitly founded upon a utilitarian theory. Under a utilitarian theory, lawmakers have to decide which types of works to prioritize for copyright protection. And in reading 17 USC § 115(a)(2), it is clear that Congress chose not to give priority to arrangements of songs prepared under mechanical licenses. If US copyright law was founded upon a natural rights theory and all new works were automatically granted protection, this problem would likely not exist, but that is not the case—Congress must weigh the costs and benefits of expanding protection. Here, the absurd results justify Congress intervening.
One way to remedy this problem is to revise 17 USC § 115(a)(2) to automatically extend protection to arrangements prepared under mechanical licenses, even if the copyright owner has not expressly granted consent for the arrangement to receive copyright protection. If drafted carefully, the consequences would be minimal—the law would have to delineate which elements of the new arrangement are not eligible for protection, and in order to do that, the arranger would only have to look back to see what elements of the original song are afforded protection. Those protected elements would then be excluded from the protection afforded to the arrangement, while the rest of the elements, as well as the arrangement as a whole, would receive copyright protection. A revised version of 17 USC § 115(a)(2) could read as follows
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. All elements of the arrangement that are not subject to copyright protection under the original copyright shall be subject to protection as a derivative work under this title.
Congress made an explicit choice to not automatically extend copyright protections to arrangements prepared under mechanical licenses. In order to prevent absurd results that end with authors receiving credit for material they did not write and thus, receiving royalties for this work that they did not create, it would be prudent of Congress to revise 17 USC § 115(a)(2) to automatically provide copyright protection to arrangements of musical works prepared under mechanical licenses.
Michael Pranger is a 2nd year JD student at Northwestern Pritzker School of Law.