Why a mechanical license is not valid for the creation of sheet music.

A mechanical reproduction license only permits you to make and distribute copies of a song, including a musical arrangement of the song, as embodied in a “sound recording.” It does not permit you to make physical or digital copies of the musical arrangement in music notation for any purpose, including the printing of copies or digital dissemination of the musical notation containing the arrangement for the purpose of making the recording, for resale, or even to facilitate a public performance of the song. The term “musical arrangement” is not synonymous with “sheet music” (whether digital or physical music notation).

If you wish to print or make copies of a musical arrangement, whether you made the arrangement for inclusion in a sound recording or not, you must get an additional license: a “Custom Arrangement License,” which can be easily obtained from a licensing agent like Tresona.

Background

In order to legally record a copyrighted song in the U.S., and make and distribute copies of the song as part of a sound recording, you must obtain a mechanical reproduction license (“mechanical license”).

The U.S. Copyright Act allows you to compel a copyright owner to give you a license to do so if you carefully comply with certain regulatory procedures, but most mechanical licenses are more easily obtained either through an organization like the Harry Fox Agency or directly from the song’s music publisher.

These voluntary mechanical licenses are granted on virtually the same terms as the statutory compulsory license, which is described in Section 115 of the Copyright Act.

Each mechanical license tells you what you can do and what you can’t do with the song.

For example, the mechanical license allows you to record, make and distribute the song as part of a “sound recording.” It does not allow you to record, make or distribute the song as part of an “audiovisual work,” a printed work (such as, sheet music), or any other kind of work (such as, a book or a computer program).

To make this clear, the Copyright Act states that the mechanical license only allows you “to make and distribute phonorecords of the work” and that one may obtain one “only if his or her primary purpose in making phonorecords is to distribute them to the public for private use….”

Thus, you cannot rely on the mechanical license to print anything except phonorecords (i.e., copies that contain sound recordings);
You can’t rely on the mechanical license to make and distribute phonorecords that are not primarily for distribution “to the public for private use”—such as where the primary purpose of making or distributing the copies is to facilitate a public performance, such as a radio broadcast. That requires a different kind of license that you must get from the song’s owner.
Nor does the mechanical license allow you to print copies of the lyrics or musical notation of the song embodied in the sound recording.

The mechanical license “includes the privilege of making a musical arrangement” of the song, but

only for the purpose allowed by the mechanical license (i.e., to make and distribute phonorecords), not to make printed copies of the arrangement in the form of music notation, whether digital or physical;
only “to the extent necessary to conform it to the style or manner of interpretation of the performance involved,” and
only if the arrangement does “not change the basic melody or fundamental character of the work.”

And even then, you cannot get copyright protection for the arrangement without the express consent of the copyright owner.

Note: The term “musical arrangement" is not synonymous with the term “sheet music.” Just because your mechanical license permits you to make a musical arrangement for inclusion in a sound recording, it does not mean you have the right to create digital notation and or print sheet music of the arrangement for dissemination in any manner. For that, you would require a Custom Arrangement License.

Examples

1. Suppose Adele wishes to record a version of the Bob Dylan composition “Make You Feel My Love.” For her recording, Adele creates a new arrangement of the song with different voicing and instrumentation, but which does not change the basic melody or fundamental character of the song. Because the musicians in Adele's band are professional and the song is relatively simple, the musicians can simply play the song without needing to create physical or digital sheet music of the arrangement Adele will perform.

Under her mechanical license, Adele:

has the privilege to create this arrangement for the purpose of making and distributing copies of a sound recording which embodies the arrangement;

does not have the privilege to print sheet music of the musical arrangement or to make and disseminate digital music notation of the arrangement for either resale, for the purpose of making the recording, or of facilitating a concert performance (for which she requires a Custom Arrangement License).

2. Suppose the musical director of a choir wishes to make a recording of "Can't Stop The Feeling," written by Max Martin, Shellback, and Justin Timberlake and arranged by Mac Huff, and the choir director obtains the proper number of octavos as published by Hal Leonard so that he has appropriate copies of the sheet music to give to each member of the choir. During the recording, the choir director tells the members of the choir that he would like them to repeat the last chorus twice.

This would be a new musical arrangement of the song that is permitted under mechanical license, because it did not change the basic melody or fundamental character of the song and no new sheet music of the arrangement was printed. (Therefore, it is not necessary to obtain a Custom Arrangement License).

3. Suppose the musical director of a choir makes his own custom musical arrangement of the song or hires a professional arranger to do so. He then obtains a mechanical license to make a sound recording of the song.

Under the mechanical license, he has the privilege of recording the song, provided the arrangement does not change the basic melody or fundamental character of the song.

He may not make, reproduce copies of, or stream on the Internet a video containing the recording, which requires a “synchronization license,” from the song’s copyright owner.

He may not print copies of the arrangement (i.e make physical or digital sheet music) for the purpose of distributing them to the choir or musicians to facilitate the making of the recording or to facilitate a public performance of the arrangement by the choir, which requires a Custom Arrangement License.

The bottom line is: the mechanical license is solely a vehicle for the production and distribution of sound recordings. It does not grant you permission to print physical notation of the arrangement or create digital notation or sheet music of the arrangement, whether or not embodied in the sound recording. For this, one would require a Custom Arrangement License, like the one issued by Tresóna. If one is making a recording, and one finds that the recording cannot be made without creating physical or digital sheet music of the "musical arrangement" being recorded, then one must seek additional permission, beyond the mechanical license, to create that sheet music.