Music Copyright Laws: Using cover song versions legally
It's also worth noting that, at first, I thought this "fee" was
merely the cost of obtaining the license. I shuddered at the thought
of having to pay this, PLUS royalties at a rate of about eight cents per song-to
say nothing of my CD's photography, art design, manufacturing costs! To my relief,
a few months later, a friend informed me that the fee I paid was just an "advance"
on the royalty for 1,000 copies of each song sold; the license itself was apparently
only $10. (According to the fine print, you're "charged a $10.00 non-refundable
processing fee per license, which will be added to the license amount and processed
as a single charge to your account.")
Back to Harry Fox... After shelling out for several songs (you
provide a ballpark release date and other details, submit your credit card info
online, then receive a license via e-mail in a matter of hours or days), I entered
the name of a Jimi Hendrix song I wanted to license. After answering all the
same questions in the exact same manner as my previous song selections, the
following words appeared before me on my monitor (in red, no doubt for dramatic
effect):
This song is not available for mechanical licensing.
Noooooo!!! In a panic, I then entered the details of a Billy Joel song I recorded.
Ditto: "This song is not available for mechanical licensing."
As far as I knew, the Harry Fox Agency held the rights to all
the songs legally available for the "covers" treatment; anything else was a
no go. I figured this was enough to all but doom my little project (*sniffle*).
For starters, those two songs demonstrated an aspect of my playing and singing
that the other eight songs didn't. Further, I just didn't think it'd be cool
to put out an "eight-song" covers CD-let alone one without my man Jimi
being represented! Lastly, since this CD was already over three years old, it
didn't feel right to do two "new" songs and slap them on at the end of the collection.
To my mind, that would ruin the idea of me releasing an "accidental" album,
if you will.
But then I discovered an interesting legal fact: Once a song has
been commercially released by an artist, that artist's song may be re-recorded
and released by anyone who chooses to do so. This holds true, provided
that the melody/lyric isn't substantially altered in the "cover" version, and
that they pay proper fees/royalties directly to the song's copyright holder.
(On the flip side, if you release a disc with cover songs on it, then
try to obtain proper licensing after the fact, you're no longer eligible-and
possibly subject to penalties/prosecution for copyright infringement!) All I
needed to do was investigate who owned the publishing rights to those Jimi Hendrix
and Billy Joel songs. This information (including each publisher's address)
was readily available through the following Performance Rights organizations:
BMI (www.bmi.com)
ASCAP (www.ascap.com)
SESAC (www.sesac.com)
(NOTE: Outside the US., similar Performance Rights organizations
exist for Canada, the UK,
Europe and
elsewhere.)
Later, I found that the above "publisher's search" process could
be sped up considerably by going through the Music Publishers' Association's
web site (www.mpa.org).
After obtaining both publishers' contact info, I was left with
that resounding "Now what?" feeling. Again, the ol' internet paid off. I found
I needed to send to each publisher what's referred to as a Notice of Intention
to Obtain Compulsory License for Making and Distributing Sound Recordings.
After more cyber searching, I finally found out what the heck that was-at
the overwhelmingly incomprehensible (to my neophyte self) U.S.
Copyright Office web site. Reading that document was almost enough to make
me toss in the towel (and my cookies). But then, much to my satisfaction, I
came across this
totally "pre-fab" (RTF) letter, designed by a friendly webmaster-"fill-in-the-blanks"
style-for submission to artists' publishers. This letter appeared to adhere
to the specifications
(PDF) prescribed by the US Copyright Office.
From here, the Billy Joel licensing process went off without a
hitch. I sent in the above letter (certified mail, return receipt); upon receipt,
they asked me via e-mail to specify the number of copies I intended to sell
(information omitted from the "pre-fab" letter I used). They then sent a written
agreement for my signature, additionally asking for an $85 check covering the
sum of advance royalties paid on 1,000 units. (My research revealed that you
could try to negotiate a lower royalty rate with each publisher. However, I
happily agreed to pay the "compulsory"-or "standard mandatory"-rate.)
This agreement also provided me with the exact wording for the "publisher/writer
credit" I needed to include in my CD's liner notes, and stipulated that the
publisher receive two copies of the disc "as released." (Individual writer/publisher
credits for every song you cover need to be included in your CD's liner
notes, by the way.) Upon execution of the agreement, they granted me the license
and quickly sent me a hard copy for my records.
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