This Week in Law is a fascinating podcast on technology law issues, although I’m way behind on listening. Recently, I was listening to Episode #124, and they had a discussion of Kind of Bloop, “An 8-Bit Tribute to Miles Davis’ Kind of Blue.” There was a lawsuit against artist Andy Baio, which he discusses in “Kind of Screwed.” There’s been a lot of discussion of the fair use elements of the case (for example, see “Kind of Bamboozled: Why ‘Kind of Bloop’ is Not a Fair Use“). But what I’d really like to talk about is (what I understand to be) a clear element of copyright law that is fundamental to this case, and that is compulsory mechanical licensing.
In TWIL podcast, there’s a great deal of discussion of should Baio have approached the photographer for a license or not. He did approach the copyright holders for Kind of Blue, who were “kind” enough to give him a license. They gave him a license for the music, but he didn’t need to approach them. Copyright law gives anyone the right to record a cover, and as a result, there is a flourishing and vibrant world of cover music, including great podcasts like Coverville, and arists like Nouvelle Vague, who do amazing bossa-nova style covers of punk. (Don’t miss their cover of Too Drunk to Fuck.) And you can listen to that because they don’t have to approach the copyright holder for permission. Maybe they would get it, maybe not. But their ability to borrow from other artists and build on their work is a matter of settled law.
I’m surprised this difference didn’t come up in the discussion, because it seems to me to be kind of important.
It’s kind of important because it’s a great example of how apparently minor variations in a law can dramatically change what we see in the world. It’s also a great example of how constraining rules like mechanical licensing can encourage creativity by moving a discussion from “allow/deny” to “under what circumstances can a copyright holder use the courts to forbid a copy.” If we had mechanical licensing for all copyrighted materials, Napster might still be around and successful.