On October 16, 2006, the United States Copyright Office concluded in a Memorandum Opinion (the Ringtone Opinion) that, subject to certain caveats, the Copyright Act's § 115 statutory license applies to ringtones. The Copyright Office concluded that ringtones (including monophonic and polyphonic ringtones, as well as mastertones) are phonorecords, and deliveries of ringtones by wire or wireless transmission constitute digital phonorecord deliveries subject to compulsory licensing under § 115.2
In the Ringtone Opinion, the Copyright Office provided a testto determine whether a particular ringtone will qualify for thestatutory compulsory license under § 115. The opinion noted that...
"whether a particular ringtone falls within the scope of the statutory license will depend primarily upon whether what is performed is simply the original musical work (or a portion thereof), or a derivative work (i.e., a musical work based on the original musical work but which is recast, transformed, or adapted in such a way that it becomes an original work of authorship and would be entitled to copyright protection as a derivative work)."
The opinion explained further that "[r]ingtones that are merely excerpts of a preexisting sound recording fall squarely within the scope of the statutory license." On the other hand, "those that contain additional material may actually be considered original derivative works and therefore outside the scope of the Section 115 license." The opinion reasoned that to be considered a derivative work outside the bounds of the statutory license, a ringtone needs to exhibit a degree of creativity sufficient to be copyrightable under the traditional standard of Feist Publications, Inc. v. Rural Telephone Service Co. Though not explicitly stated in the Ringtone Opinion, one can infer that whether a ringtone is a derivative work is a key issue because it implicates a third exclusive right of copyright--the adaptation right (right to make derivative works)--that is not included in the bundle of rights that come with a § 115 compulsory license.
Daniel H. Mark,
Wringing Songwriters Dry: Negative Consequences of Compulsory Licensing for Ringtones,
10 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol10/iss3/4