Can a publisher ask for more than the statutory mechanical rate?

January 22, 2013

Dear Music Lawyer,

Can a publisher ask for more than the minimum statutory mechanical rate of 9.1 cents? The song is under 5 minutes.

—Claude

Dear Claude,

Yes, a songwriter/music publisher can (and often does) request more than the minimum statutory mechanical rate if the song has not been previously reproduced/released on a phonorecord.* The rationale is that the copyright holder should get to control the first recorded release of the song. This is often called the first use mechanical license.

In other words, for a "first use," the song copyright holder is not restricted to the mechanical royalty rates dictated by the compulsory mechanical licensing provisions of the U.S. Copyright Act and can charge whatever mechanical royalty rate he/she wants.

After the song has been recorded and released to the general public on a CD, as a digital download, etc., then any other recording artist has the right to record and release the song, subject to properly notifying the songwriter/publisher and paying mechanical royalties at the statutory rate.

*Phonorecords are defined in the U.S. Copyright Act as "material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

—Amy E. Mitchell