05/07/2018

The Future of the Compulsory License: Tick Tock and It’s Time to Eliminate it


The Future of the Compulsory License: Tick Tock and It’s Time to Eliminate it

Debbie Chu

On a quiet evening, a girl sits on her bedroom floor while tears trickle down her cheeks. She wipes them away as she listens to a song that reminds her of what she and her former boyfriend used to be. Meanwhile, in another part of town, strobe lights, streamers, and disco balls adorn a middle school gymnasium while students dance to a song with a thundering bass and a pounding rhythm. The difference between the two scenarios is obvious; the former is sad and the latter is happy. Both songs have the same lyrics, so what exactly is it that the first one triggers sadness and the second one evokes happiness? The answer lies in the rhythm of the song. The first one is composed of “keyboardsynth chords, bright, jangly guitars, effects loop, pitch shift, clock-ticking percussion, and elastic bassline” and has a “touching and bittersweet” tempo. The second one has a modern feel to it with a pop and punk style.

The song in the first scenario comes from Cyndi Lauper’s Time After Time, her first number-one hit in the U.S. Billboard Hot 100 chart in June 1984. This song received many accolades, among which are Rolling Stone & MTV’s “100 Greatest Pop Songs,” VH1’s “100 Best Songs of the Past 25 Years,” and “100 Greatest Songs of the 80s.” Music critics commended the song for its “masterpiece” and for being “the best and most significant song [Lauper] ever wrote or recorded.” The song in the second scenario comes from Quietdrive, an alternative rock band. Quietdrive released their cover of Lauper’s Time After Time in 2006. This version of the song ranked number 25 on the American Top 40 countdown show, and it was the soundtrack of a 2006 film, John Tucker Must Die as well as music for the trailer of a 2008 remake of the movie, Prom Night.

The two versions of Time After Time sound nothing alike. In fact, one would never even guess that Quietdrive’s cover originated from Lauper’s song. Only close attention to the lyrics would reveal that the words are identical for both of them. Quietdrive transformed the original “touching and bittersweet” popsong into an entirely different genre – an upbeat pop and punk with faster beats. At the expense of Lauper’s song, Quietdrive rose to fame, landing their over on music charts and movies. It seems unfair to Lauper because her song has now lost its true identity. One may ask how this can be done without violating any copyright law.

The compulsory mechanical license for nondramatic musical works in §115 of the Copyright Act makes Quietdrive’s cover possible and legal. Once a sound recording of an original, nondramatic musical work has been fixed and the copyright owner has authorized the making of the phonorecords in the sound recording, anyone can obtain this license by paying a statutory rate without permission from the copyright owner. This license allows an artist (licensee) to arrange the work in a manner that reflects his or her style, but the arrangement should still be somewhat similar to the “basic melody or fundamental character of the work.” This artist can then record the revised work and then sell it to the public for private use.

This paper discusses the reasons for the creation of the compulsory mechanical license, points out the license’s ineffectiveness, and argues for its elimination. Part I examines the legislative history of the license – Copyright Act of 1909, Copyright Act of 1976, and Section 115 Reform Act. Part II analyzes the ineffectiveness of the compulsory license. Part III discusses some reform proposals. Part IV recommends the elimination of the license, and finally Part V provides the conclusion.

99 J. Pat. & Trademark Off. Soc’y 446(2017)

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