Does a Creative Commons license on sheet music affect what performers can do with their audio recordings of that piece?

Question

As a composer, I only produce sheet music and I license all of it using the Creative Commons “Attribution-ShareAlike 4.0 International” license. This should allow a performer to perform and record the work and even sell it without having to pay me anything. But does the license require the performer to make the audio freely available for other people to copy, use, mix, etc, as if the performance were also licensed under the same CC license?

Answer 1

Probably, Yes

Releasing a composition (say in the form of sheet music) under CC-BY-SA 4.0 should oblige anyone who makes a recording of that work to release it, if at all, under the same license. (Note that nothing requires that it be released at all.)

CC License terms

The creative commons Attribution-ShareAlike 4.0 International license provides, in section 3 (b) "ShareAlike":

In addition to the conditions in Section 3 (a), if You Share Adapted Material You produce, the following conditions also apply.

3(b) 1. The Adapter's License You apply must be a Creative Commons license with the same License Elements, this version or later, or a BY-SA Compatible License.

This raises the question of whether a performance or a phonogram (recording of a performance) of a composition constitutes "Adapted Material".

Section 1(a) of the license provides this definition:

Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor. For purposes of this Public License, where the Licensed Material is a musical work, performance, or sound recording, Adapted Material is always produced where the Licensed Material is synched in timed relation with a moving image.

The CC Wiki page "Rights other than copyright" says:

Can I use CC licenses to license rights other than copyright?
CC licenses are copyright licenses, but the latest version of CC licenses also cover certain other rights similar to copyright, including performance, broadcast, and sound recording rights, as well as sui generis database rights. You may apply a 4.0 license to material subject to any of those rights, whether or not the material is also subject to copyright.

US Law

In [17 USC 101])https://www.copyright.gov/title17/92chap1.html#101) the definition of "derivative work" is given as:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. (emphasis added)

However, in 17 USC 106 the right to prepare derivative works is covered under subsection (2), while the right to perform works is under subsection (4)

Conclusion

Since the definition of "Adapted Materiel" in the CC-BY-SA 4.0 license does not include the words "perform" nor "sound recording", it is less than clear if making a sound recording (phonogram) is considered an adapted work subject to the SA clause or not. However, since the license covers actions "requiring permission under the Copyright and Similar Rights" which includes making a sound recording (at least under US law), so a sound recording is probably "Adapted Materiel" which must be released under the same or a compatible license.

Moreover, if a sound recording is not adapted materiel, then it must be a form of the original content, and so may not be redistributed except under the same license in any case.

Thus under either theory, a recording of a work whose composition copyright has been released under a CC-BY-0SA 4.0 license must be released, if at all, under the same license to comply with the original license.