Developers of musical ringtones may benefit from using the statutory license created by Section 115 of the Copyright Act
The Register of Copyrights has issued a formal opinion finding that, in most instances, musical ringtones for cell phones and related mobile devices fall within the scope of the statutory license under Section 115 of the Copyright Act. See Docket No. RF 2006-1. The Register rendered its opinion at the request of the Record Industry Association of America (“RIAA”), which had sought clarification that musical ringtones, typically comprising of ten-to-thirty-second “snippets” of full-length musical works, are subject to Section 115 of the Copyright Act and, thus, may properly be made and distributed under the compulsory license afforded by that Section. Analyzing the language of Section 115 as well as the legislative history related to changes to that Section with the enactment of the Digital Performance Right in Sound Recordings Act of 1995, the Register concluded that “ringtones that are merely excerpts of a preexisting sound recording fall squarely within the scope of the statutory license.”
The National Music Publishers Association, Inc., the Songwriters Guild of America, and the Nashville Songwriters Association International (“Copyright Owners”) opposed the decision that the Register ultimately reached. The Copyright Owners argued that because ringtones involve only small portion of the underlying composition, and not the entire musical work, they constitute derivative works, which are outside of the scope of the Section 115 license. The Register rejected that argument, finding that most ringtones do not constitute derivative works because they do not exhibit a degree of originality to be sufficient enough to be copyrightable. Indeed, the Register noted that many ringtones simply exhibit only trivial changes from the underlying work (e.g., selection of a short snippet of a verse or a "hook" of a song to repeat as the ringtone) and, thus, would not be separately copyrightable apart from the underlying work.
The Register's opinion, however, is not absolute, as the Register took note of the fact that there are ringtones that contain additional material that actually may be considered original derivative works and therefore outside of the scope of the Section 115 license (e.g., a ringtone that contains a short snippet of a verse of a song followed by a statement in the voice of the singer that the phone should be answered). In such instances, a person can only create and/or distribute the ringtone after having secured a license from the owner of the copyright for the underlying song. Failure to do so would infringe the copyright owner's right to create derivative works. Nevertheless, once a ringtone, which is considered to be a derivative work, has been created and distributed with the authorization of the copyright owner, then any person may use the statutory license under Section 115 to make and distribute the musical work in the ringtone.
While the Register's opinion makes clear that mere excerpts of a preexisting sound recording for use as a ringtone falls squarely within the scope of the compulsory license of Section 115, care should be taken if the ringtone will modify and/or add to the underlying musical work because it then may not qualify for the compulsory license under Section 115 of the Copyright Act and a voluntary license from the copyright owner would need to be secured.