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Originally Posted by Resonant Alien  I believe that is incorrect. § 106. Exclusive rights in copyrighted works<SUP>36</SUP>
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Based on the above, a cover is a violation, as the author has exclusive rights.
"Fair Use" is the only exception, and is defined as: § 107. Limitations on exclusive rights: Fair use<SUP>38</SUP>
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Recording a cover does not constitute fair use unless the reason for recording the cover falls under one of the above conditions. |
I think you are overlooking compulsory liscenses
Circular 73
Compulsory License for Making and Distributing Phonorecords
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Table of Contents
The Compulsory Licensing Provisions
Copyright Arbitration Royalty Panels
Does the Intended User Have to Use a Compulsory License?
When May a Compulsory License Be Obtained?
Under What Conditions May a Compulsory License Be Obtained?
May a New Arrangement of the Copyrighted Musical Work Be Made for the Recording?
How Does a Person Obtain a Compulsory License?
For Further Information
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The Compulsory Licensing Provisions
The Copyright Act contains compulsory licensing provisions governing the making and distribution of phonorecords of nondramatic musical works. Section 115 of the law provides that, once phonorecords of a musical work have been publicly distributed in the United States with the copyright owner’s consent, anyone else may, under certain circumstances and subject to limited conditions, obtain a “compulsory license” to make and distribute phonorecords of the work without express permission from the copyright owner.
The Copyright Office Regulations set out in detail the procedures that must be followed, while the Copyright Arbitration Royalty Panels determine the royalty fee that must be paid by the user under a compulsory license.
Copyright Arbitration Royalty Panels
The Copyright Royalty Tribunal Reform Act of 1993, Public Law 103-198, eliminated the Copyright Royalty Tribunal and replaced it with a system of ad hoc Copyright Arbitration Royalty Panels (CARPs). The panels, administered by the Librarian of Congress and the Copyright Office, adjust the copyright compulsory license royalty rates (including the mechanical rates for making and distributing phonorecords) and distribute the royalties collected by the Licensing Division to the appropriate copyright owners.
For further information about CARPs, write to:
Copyright Arbitration Royalty Panels (CARPs)
P.O. Box 70977
Washington, D.C. 20024
Tel: 202-707-8380
Fax: 202-252-3423
Web:
U.S. Copyright Office - Licensing and CARP Information
Does the Intended User Have to Use a Compulsory License?
No. The person wishing to make and distribute phonorecords of a nondramatic musical work may negotiate directly with the copyright owner or his or her agent. But, if the copyright owner is unwilling to negotiate or if the copyright owner cannot be contacted, the person intending to record the work may use the compulsory licensing provisions of the copyright law.
NOTE: The statute defines “phonorecords” as “material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed....Since the compulsory license applies only to the making and distributing of phonorecords, and soundtracks are not “phonorecords,” the compulsory license is not available to one wishing to record on a soundtrack.
When May a Compulsory License Be Obtained?
A compulsory license is available to anyone as soon as “phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner.”
Under What Conditions May a Compulsory License Be Obtained?
It may be obtained only if the primary purpose in making the phonorecords is to distribute them to the public for private use. It is not available for phonorecords intended for use in background music systems, jukeboxes, broadcasting, or any other public use.
May a New Arrangement of the Copyrighted Musical Work Be Made for the Recording?
Yes. The 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.” However, section 115 also provides that 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 . . . except with the express consent of the copyright owner.”
How Does a Person Obtain a Compulsory License?
The first step is to identify the copyright owner of the nondramatic musical work to be recorded. This may be done either by personally searching the records of the Copyright Office or by requesting that the Copyright Office conduct the search. (For further information about searching the files of the Copyright Office, see Circular 22 How to Investigate the Copyright Status of a Work, and Circular 75, The Licensing Division of the Copyright Office.)
If the Name and Address of the Copyright Owner Are Found:
Before or within 30 days after making, and before distributing any phonorecords of the work, serve a Notice of Intention to Obtain a Compulsory License on the copyright owner by certified or registered mail.
Note: A separate Notice of Intention must be filed for each title for which a compulsory license is needed.
A copy of this Notice of Intention does not have to be filed in the Copyright Office.
Make royalty payments, accompanied by a Monthly Statement of Account, to the copyright owner on or before the 20th day of each month for every phonorecord made and distributed in accordance with the license.
Definition of “distributed.” For the purpose of computing royalties, a phonorecord is considered “volun-tarily distributed” if the compulsory licensee has voluntarily and permanently parted with possession of the phonorecord.
File with the copyright owner a detailed Annual Statement of Account, certified by a certified public accountant.
If the Name and Address of the Copyright Owner Are Not Found:
File a Notice of Intention to Obtain a Compulsory License in the Library of Congress, Copyright Office, Licensing Division, 101 Independence Avenue, S.E., Washington, D.C. 20557-6400.
Note: A separate Notice of Intention must be filed for each title for which a compulsory license is needed.
Submit the statutory fee with each Notice of Intention.
Upon receipt of such a Notice, the Licensing Division will provide the sender with a written acknowledgment of receipt and filing. Upon request and payment of an additional fee for each Notice of Intention, the Licensing Division will provide a Certificate of Filing.
Make checks payable to Register of Copyrights.
Important: The name and address of the copyright owner may appear in the records of the Copyright Office at a later time. Since royalty payments must be made after the copyright owner is identified in the Copyright Office records, the licensee should periodically search these records to ascertain if the copyright owner has been identified. If and after the copyright owner is identified in the Copyright Office records, the licensee should make royalty payments for phonorecords made and distributed after the copyright owner is so identified.
The Copyright Office does not provide forms for the Notice of Intention, the Monthly Statement of Account, or the Annual Statement of Account. For detailed instructions concerning the form and content of the Notice of Intention and Statements of Accounts, write for the Copyright Office Regulations on Compulsory License for Making and Distributing Phonorecords, Circulars 96 Section 201.18 and 96 Section 201.19. Address your request to:
Library of Congress
Copyright Office
Licensing Division, LM-458
101 Independence Avenue, S.E.
Washington, D.C. 20557-6400
(202) 707-8150
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For Further Information
Information via the Internet
Circulars, announcements, regulations, other related materials, and all copyright application forms are available from the Copyright Office website at
U.S. Copyright Office.
Information by telephone
For general information about copyright, call the Copyright Public Information Office at (202) 707-3000. The TTY number is (202) 707-6737. Staff members are on duty from 8:30 am to 5:00 pm, eastern time, Monday through Friday, except federal holidays. Recorded information is available 24 hours a day. Or, if you know which application forms and circulars you want, request them 24 hours a day from the Forms and Publications Hotline at (202) 707-9100. Leave a recorded message.
Information by regular mail
Write to:
Library of Congress
Copyright Office
Publications Section
101 Independence Avenue SE
Washington, DC 20559-6000
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Circular 73, Revised August 2003
Format Note:
This electronic version has been altered slightly from the original printed text for website presentation. For a copy of the original circular, consult the PDF version or write to Copyright Office, 101 Independence Avenue SE, Washington, DC 20559-6000.
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