Wednesday, November 28, 2007

Harder, better, faster, cover.

I was listening to 30 Seconds to Mars cover Kanye West’s Stronger, and it occurred to me that covering songs that, in the original, contain samples is not an easy matter. Stronger samples Daft Punk under license. 30 Seconds to Mars does not sample Kanye or Daft Punk, just sings both parts, so it has no problems with the sound recording copyright. In addition, the musical work Stronger is subject to a compulsory license. But the musical work excerpt from Daft Punk wouldn’t be – unless there’s some theory that the voluntarily licensed incorporation of the Daft Punk musical work into Stronger allows compulsory licensing of the entire new work.

I wonder what the contract says about Daft Punk’s participation in royalties from the musical work; if Daft Punk gets a share, isn’t that an argument that it shouldn’t also be entitled to demand a voluntary license from anyone who covers the song? If Daft Punk does have separate rights against a cover artist, then there’s a way around the musical work compulsory license: make sure your musical work has a voluntarily licensed portion from another song, and then no cover can proceed without another voluntary license. (That presumes, of course, that eliminating the licensed portion would fundamentally change the musical work. If it wouldn’t, the cover can proceed, sans sample.)

This isn’t just limited to sampling, of course. Anyone who covers My Sweet Lord is also, according to precedent, copying He’s So Fine, but not in a way subject to the compulsory license. Bridgeport Music, I believe, has already noticed this issue. Indie rockers ironically covering hip-hop, take note.

4 comments:

Bruce Boyden said...

That raises an interesting question -- what's the musical composition for "Stronger"? Does it include the sample from Daft Punk? It seems a plausible argument that the licensed use of Daft Punk created a derivative work of the composition -- and if so, then it seems like you should only need one mechanical license for that derivative work, not two. I suspect neither West's publisher nor Daft Punk's publisher thinks of things that way, but why should that be binding on a third party compulsory licensee?

Rebecca Tushnet said...

I haven't looked up the details on Stronger, but it's standard practice to give the sampled work's songwriters songwriting credit for some -- even all -- of the sampling song. Which I think supports your interpretation, but unfortunately I don't think it's obvious from the statute how it should play out.

Rebecca Tushnet said...

I should add, Bruce, that while your rule makes sense, it isn't the ordinary derivative works rule -- someone reproducing a derivative work could infringe the original if the rights were held by different parties (the It's a Wonderful Life problem, among others). Usually the creator of the derivative work has the incentive to acquire the necessary passthrough rights, but maybe less so here, where the result might well be to free it from the constraints of the compulsory license and the HFA license that exists in the shadow of the compulsory license.

Bruce Boyden said...

Right, it's the compulsory license issue that throws a wrench in here; otherwise the parties are relatively free to structure the ownership of bits of the work however they want, and the second-comer has to take the work(s) as they come. But given that the compulsory license is compulsory, I don't initially see why the compulsory licensee couldn't say, look, I want to license the musical composition as fixed and published in the sound recording, even if no one claims ownership of that particular composition per se. Otherwise there would seem to be the potential for evasion of Section 115 -- sure you can get a mechanical license on the "composition," but that won't include the right to reproduce my copyrighted poem (the lyrics).