I was listening to 30 Seconds to Mars cover Kanye West’s Stronger, and it occurred to me that covering songs that, in the original, contain samples is not an easy matter. Stronger samples Daft Punk under license. 30 Seconds to Mars does not sample Kanye or Daft Punk, just sings both parts, so it has no problems with the sound recording copyright. In addition, the musical work Stronger is subject to a compulsory license. But the musical work excerpt from Daft Punk wouldn’t be – unless there’s some theory that the voluntarily licensed incorporation of the Daft Punk musical work into Stronger allows compulsory licensing of the entire new work.
I wonder what the contract says about Daft Punk’s participation in royalties from the musical work; if Daft Punk gets a share, isn’t that an argument that it shouldn’t also be entitled to demand a voluntary license from anyone who covers the song? If Daft Punk does have separate rights against a cover artist, then there’s a way around the musical work compulsory license: make sure your musical work has a voluntarily licensed portion from another song, and then no cover can proceed without another voluntary license. (That presumes, of course, that eliminating the licensed portion would fundamentally change the musical work. If it wouldn’t, the cover can proceed, sans sample.)
This isn’t just limited to sampling, of course. Anyone who covers My Sweet Lord is also, according to precedent, copying He’s So Fine, but not in a way subject to the compulsory license. Bridgeport Music, I believe, has already noticed this issue. Indie rockers ironically covering hip-hop, take note.