Can Another Artist Cover Your Exclusive Song? First Use and the Compulsory License

You paid for an exclusive, so nobody else can put out a version of your song, right? Almost. The exclusive stops anyone else from being licensed for the song during your term. It cannot stop a path that the law opens once a song is released, and you should know about it before you tell fans anything.

Here is how first use and the compulsory license work, and what they mean for your release.

What your exclusive does stop

While your term is active, nobody else can license the song. For 3, 6 or 12 months no new artist can license it, and you can renew. Licenses granted before your term began stay in place, because Starchild licenses are perpetual. Our guide to what an exclusive can and can't promise covers that side.

First use: the writer decides who records it first

Before a song has been released, the writer decides who records it first. San Diego music attorney Brian Witkin calls this first use. He explains that a compulsory license is not available "unless and until the original writer publishes the song," and that the rule prevents anyone from "releasing a song before the original songwriter does."

Until that first release, nobody can cover the song without the writer's permission.

The compulsory license: the door that opens after release

After the first release made with the owner's permission, the rule flips. The U.S. Copyright Office's Circular 73 says: "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 and its territories under the authority of the copyright owner." Section 115 of the Copyright Act lists the same condition. An exclusive deal is not one of its conditions.

TuneCore's guide, written by attorney Justin Jacobson, says the same in plainer words: once a track has been publicly released for the first time, a compulsory license is available to anyone who wants to record and distribute the work.

Two terms need a gloss. Phonorecords are audio copies: CDs and vinyl, plus digital deliveries such as downloads and interactive streams. Nondramatic covers most songs. The Office describes a nondramatic musical work as music and any accompanying lyrics not created for use in a motion picture or dramatic work.

Compulsory means the owner cannot refuse. In Witkin's words, "anyone can record and release a cover song and the songwriter(s) can't do anything about it, so long as certain requirements from Section 115 are met."

Your release may be the one that opens the door, or an earlier licensee's release may have opened it already. Either way, Section 115 makes no exception for a song under an exclusive.

What a cover has to follow

The MLC defines a cover song as "a new recording or performance by someone other than the original artist." Under Section 115, a cover has to follow a few rules.

• It has to be a new recording. Circular 73 says Section 115 "does not cover sound recordings." A cover cannot copy your recording, which is a separate work.
• It has to stay true to the song. An arrangement may fit the cover's style, but it "shall not change the basic melody or fundamental character of the work."
• It is audio only. A phonorecord "does not include sounds accompanying a motion picture or other audiovisual work," so a cover in a video needs separate permission.
• It pays the writer. The cover's maker follows the Section 115 process and pays royalties. For streams and downloads, digital services get a blanket license through The MLC. For physical copies such as CDs and vinyl, the older notice-of-intention process stays in place, as the Copyright Office's Music Modernization FAQ explains.

What it means for your release

An exclusive is a promise about licenses. It is not a wall around the song. So make promises you can keep.

• Say what is true. "Exclusive license," "written by" and "my recording of" are accurate. "Nobody else can ever record this song" and "the only version" are not. Our guide to telling the story honestly has more.
• Protect what is yours. A cover cannot copy your recording. If a track sounds copied instead of re-recorded, ask a music attorney. Our guide to who owns your recording explains what you hold.
• Keep your own paperwork. Save your certificate and receipt, and check your credits, so your version is easy to tell apart from any cover.
• Release on your plan. The best answer to a possible cover is a well-timed release of your own. Our timing guide shows how to count back from your date.

A short example

Dana buys a 6-month exclusive and releases her version in March. In May a stranger records their own version and releases it through a distributor under the compulsory license.

Dana's exclusive is intact, because nobody licensed the song from the writer. Her recording is untouched. The stranger's version is a different record, and the writer is paid mechanical royalties on it. Dana and the stranger are made-up, but the order of events follows the rules above.

Two cautions

• This is U.S. law. Other countries have their own rules for covers, so check local rules if you release elsewhere.
• We cannot tell you whether a particular song has already met the first-release test. Plan as if covers are allowed. The MLC says it "cannot give legal advice on cover songs or derivative works," and we cannot either, so ask a music attorney if a deal depends on the answer.

If you are choosing a song now, you can browse songs for artists and sing over the demo vocal before you decide.

Sources

• U.S. Copyright Office: Circular 73, Compulsory License for Making and Distributing Phonorecords
• U.S. Copyright Office: Title 17, Chapter 1, Subject Matter and Scope of Copyright (Section 115)
• U.S. Copyright Office: Music Modernization FAQ
• San Diego Troubadour: Music and the Law, How to Obtain a License to Release a Cover Song (Brian Witkin, Esq.)
• The MLC Help Center: Can I register my cover song with The MLC and collect royalties?
• TuneCore: Mechanical Licensing 101 (Justin M. Jacobson, Esq.)