JibJab and covers:

Reader Margaret Schoen writes:

An issue I don’t think I’ve seen covered in your discussion of the JibJab debate. Could the JibJab song possibly be construed as a cover of the original song, as opposed to a parody of it? I believe copyright holders are required to issue compulsory or mechanical licenses for covers of songs, even though they may charge for them. . . .

Aha — a question on which I have a definite answer! The definite answer is “no.” Though 17 U.S.C. sec. 115 does give people the right to cover others’ songs without permission, it’s subject to several limitations: Among others,

1. The right extends only to the making and distribution of phonorecords to the public, but specifically excluded (see sec. 101) the distribution of sounds that accompany an audiovisual work.
2. The new arrangement may not change the fundamental character of the original work (which JibJab’s work definitely does, though the question is whether it does so in just the right way to make it a fair use).
3. The user must have given the owner timely notice of the intention to make the works, which I’m sure JibJab didn’t do.