Thursday, May 18, 2006

Liability rules in Intellectual Property Law: covers vs sampling

Here's something odd: why are covers and sampling treated so differently? From the Indiana University Copyright Management Center:
A cover song may be created either by getting permission from the mechanical rights owner or through a compulsory mechanical license. Once the copyright owner of a musical composition records and distributes the work to the public, or allows another to do so, anyone that wishes to record and distribute that same work may do so without permission (subject to certain limitations) by issuing the copyright owner a notice of intention to obtain a compulsory license. The cover song is subject to a compulsory mechanical license which provides the copyright owner an automatic royalty payment for every recording created and sold. The cover artist may negotiate with the copyright owner to secure better terms than what the compulsory license affords the cover artist. However, the copyright owner cannot disallow the cover artist from reproducing and distributing that work if the cover artist is willing to pay the compulsory license.
This is controlled by P.L. 103-198, codified around 17 U.S.C. 107. Compare this with how to obtain permission to use sampled sounds in your own music:
Permission must be secured for the performance rights as well as for the mechanical rights. The performance rights are involved because a sample “performs” part of the songwriter’s composition. The mechanical rights are involved because a sample re-records a part of the original sound recording.
Why isn't the statutory "compulsory system" extended to sampling? Sampling rights would seem to be a great candidate for liability rules rather than property rules, given the transaction costs involved. You'd avoid ridiculous cases like this one, where a band, NWA, was held to have violated copyright law for a truly de minimis sampling from Funkadelic's "Get off Your Ass and Jam" for their song "100 Miles and Runnin'." The sample is warped almost beyond recognition, but someone spotted it. The above website brilliantly mocks the "no de minimis excuse" rule by showing just how much you can make out of the three notes NWA used. If you're interested in sampling, check it out. And of course see The Grey Album.

I'm not necessarily advocating making sampling licenses compulsory; it just seems like covers and samples should be on the same footing. Am I wrong? How much, by the way, do you pay in royalties for a cover song? "9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is greater." And, if you feel bad downloading music illicitly from something like Napster, see this cute graphic from the NYTimes on how you'd go about gettin' legal. Hat tip to Reynard.

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