802.6 (B) Permission to Use Under a Section 115 Compulsory License
Section 115 of the Copyright Act establishes a “compulsory license” permitting any person to make and distribute phonorecords of a nondramatic musical work without obtaining permission from the copyright owner of that work, if certain conditions are met. See 17 U.S.C. § 115 (A) (1)- (2). In particular, the musical work must have been “distributed in the United States under the authority of the copyright owner.” A party using the compulsory license may also make a musical arrangement of the underlying musical work “to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the
basic melody or fundamental character of the work.” Id. § 115 (A) (2). Section 115 (A) (2) also states that the arrangement “shall not be subject to protection as a derivative work” under the Copyright Act without “the express consent of the copyright owner.” Id. This means that the arrangement cannot be registered with the U.S. Copyright Office unless the licensee obtains express consent from the owner of the musical work. This is the case even if the arrangement made pursuant to the compulsory license contains enough original authorship to qualify as a derivative work.
If it seems unlikely that the licensee obtained permission to claim copyright in the new arrangement of the preexisting musical work, the registration specialist may communicate with the applicant or may refuse registration.