I do have a disagreement with #60 post's saying:
"Performance or recording of a song requires the consent of the owner of the song, normally its original creator unless there's a contract indicating otherwise. If the OP's ex-bandmate had solely written the songs, then he does indeed have the legal right to deny the others permission to play them."
In the case of playing something already released, there's the concept of "compulsory licensing", but the user does (theoretically, anyway) have to pay ...
But, IANAIAAL.
Unlike all the social media experts claiming constitutional rights they don't actually have on a myriad of issues, copyright holders actually do have constitutional rights. Why is that? Because the Constitution actually says so.
Invalid Link Removed of the constitution is called the Patent and Copyright Clause of the Constitution and it gives Congress the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
Accordingly, the constitutional basis for the exclusive rights of authors is clear. However, the Constitution also gives Congress the power to promote the useful arts (e.g., having more music available to the public than less). And, in that regard, Congress has decided that certain exceptions to an author's right of exclusivity (i.e., their little monopoly) will help promote the useful arts. The compulsory license is one such exception to an author's right of exclusivity.
The compulsory license can be found in Section 115 of the Copyright Act. It is applicable to musical compositions only (not sound recordings) and there are a number of limitations and requirements. The very, very short story is that this license allows artists to make "cover" versions of previously released songs and distribute them in CDs and digital phonorecords like those found on Spotify. An artist could not use this license for purposes of making a music video to go along with their cover song. Basically it's for recording a previously released song (i.e., making a cover version of it) and exploiting it through CDs and now streaming.
Why is it called a compulsory license? Because the artist can ask permission from the songwriter(s)/publisher(s) of the song to create a cover version of the song and if that request is denied, then the artist can use the procedures set forth in Section 115 to compel the songwriter(s)/publisher(s) to license the use of the song in the cover recording. In practice, no one says no to a request because the artist can use the provisions in Section 115 to compel songwriter(s)/publisher(s) to license the use of the song in the cover recording. Hence, the license is compulsory. If the writer/publisher denies the request and forces the artist to use the Section 115 provisions, then the government gets involved and is part of the licensing process and nobody wants that (including the government).
There's a lot more to the Section 115 compulsory license, but those are the basics unless I'm forgetting something.
Of course, you don't need a license if music is in the public domain, and there would be more music in the public domain if Congress (both sides) hadn't capitulated to big business (e.g., Disney) and eviscerated the constitutional concept of "limited times" that copyright holders have their exclusive rights. But that's a different rant for a different thread.
Best,
MA
