Can a publisher ask for more than the statutory mechanical rate?

January 22, 2013

Dear Music Lawyer,

Can a publisher ask for more than the minimum statutory mechanical rate of 9.1 cents? The song is under 5 minutes.


Dear Claude,

Yes, a songwriter/music publisher can (and often does) request more than the minimum statutory mechanical rate if the song has not been previously reproduced/released on a phonorecord.* The rationale is that the copyright holder should get to control the first recorded release of the song. This is often called the first use mechanical license.

In other words, for a "first use," the song copyright holder is not restricted to the mechanical royalty rates dictated by the compulsory mechanical licensing provisions of the U.S. Copyright Act and can charge whatever mechanical royalty rate he/she wants.

After the song has been recorded and released to the general public on a CD, as a digital download, etc., then any other recording artist has the right to record and release the song, subject to properly notifying the songwriter/publisher and paying mechanical royalties at the statutory rate.

*Phonorecords are defined in the U.S. Copyright Act as "material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

—Amy E. Mitchell is maintained by experienced Austin music lawyer Amy E. Mitchell. Please feel free to ask any music law related questions. You will be notified by email when your question has been selected for response, and the response will be posted on this site.

Please note that no responses are guaranteed, and responses provided on this site do not constitute legal advice and may be edited or removed at any time. The purpose of is solely to educate and inform musicians and music professionals about legal issues in the music industry. Accordingly, any posted responses are merely intended to give you general legal insight in order to point you in the right direction.