For many musicians, a
considerable amount of "play time" is spent learning
other people's songs—either for cover band gigs,
wedding performances, or merely to study another artist's
work. If this sounds like you, as your repertoire has grown,
it's highly likely one or more of those songs has sparked
something extra-special inside you. Why not immortalize your
efforts by recording some of those magical numbers and putting
them on a CD? At the very least, one of those
"classic" tracks might be the perfect way to
punctuate your next disc!
But before you act, you need to know what steps you need to
take to ensure you're protected, and the original songwriter
gets his/her due. With this article, we'll take a look at the
three primary paths you can take to obtain a mechanical
license [a.k.a. Circular
73—Compulsory License For Making and Distributing
Phonorecords (PDF)] to legally release your version of
another artist's song. For reality's sake, we'll also include
a little"story" to go with it—my personal
experience releasing an album comprised of covers—to walk
you through this somewhat tricky, time-consuming process. Let
the games begin!
Way back in December 2000 I recorded a set of 10 cover
songs, intending them to be nothing more than a CD-R Christmas
gift for my Mother. Nothing fancy, just a bunch of classic
tunes (Beach Boys, Beatles, Queen, etc.) I'd spent some time
on months earlier, developing from an "arrangement"
standpoint to add to my repertoire, then recorded totally
"raw" in my home studio. When the holidays finally
hit, needless to say, ma dug my little "stocking
stuffer." And as an added bonus, it was a big hit amongst
my relatives!
Well, after playing some of these tracks for some of my
(thankfully) enthusiastic friends, I was encouraged to take
these songs to the next level—offer them as a full-blown,
shrink-wrapped CD, available to "quirky cover song"
fans. However, though I went the extra mile trying to conceive
of unique ways to present these tunes, I wrote nary a note of
this music. In order to legally (and ethically) pull this off,
I'd have to find out who to pay, credit, and get permission
from. With none of my friends involved in publishing or
entertainment law, I hadn't the foggiest idea how to go about
this.
Enter the Harry Fox Agency, or HFA. After scouring the
internet for "ballpark" legal advice, it became
clear that the HFA was the central hub of all things relating
to obtaining the rights to record and sell copies of songs
written by other parties. (NOTE: Outside the US.,
similar Mechanical Rights agencies exist for Canada,
the UK,
Europe
and elsewhere.) Upon locating the Harry Fox Agency's home
page (www.harryfox.com),
I discovered that the HFA (among other things) specializes in
the following licensing services:
Mechanical Licensing (licensing of copyrighted
musical compositions for use on CDs, records, tapes, and
certain digital configurations)
Digital Licensing (licensing of copyrighted musical
compositions in digital configurations, including but not
limited to, full downloads, limited-use downloads, on-demand
streaming and CD burning.)
Given that I was going the "CD" route, playing
someone else's "copyrighted musical composition,"
this confirmed some of the things that I'd already read
online—I needed a MECHANICAL LICENSE!
On the left side of the HFA homepage read the words: "To
obtain an HFA Limited Quantity License (less than 2,500
units), use Songfile.com (click here)." Since I was
planning on manufacturing 1,000 units—arguably the most
common number for an "indie" CD run—HFA's www.songfile.com
sounded right for my purposes.
On songfile.com, the steps to follow were simple: I clicked
the "Song Search" link (note their browser
requirements), entered the title of one of the songs I
covered, and searched their database for the types of licenses
available. Upon selecting the "mechanical license"
option, I was asked the following multiple-choice questions
(my answers appear in parentheses):
1) How many recordings will you make? [2500 COPIES
OR LESS (LICENSE FEE MINIMUM IS 500 UNITS)]
2) Manufactured in what country? (WITHIN U.S.)
3) Distributed in what country? (WITHIN U.S.)
4) Which type of Organization do you represent?
(INDIVIDUAL)
Based on the length of each song and the number of units
you plan to sell, songfile.com then computes a fee based upon
the statutory mechanical royalty rate—the money
collected for each sale of your cover version that goes
directly to the song's writer and publisher (often split
50/50). Currently (January 1, 2004 to December 31, 2005), the
"statutory mechanical royalty rate" is:
8.50 Cents for songs 5 minutes or less
1.65 Cents per minute or fraction thereof over 5 minutes.
At that rate, for my purposes, covering a single song under
five minutes long (selling 1,000 copies of it), added up to an
$85 fee. Since I was going to be licensing 10 songs, I'd have
to pay at least $850! (Two of the songs I recorded were
actually over six minutes. At the current rate, that
calculates to $115 each.) To say the least, that's a pretty
substantial up-front investment! (On a per song basis, this
fee can be paid online by credit card; otherwise you have to
do the entire process manually by filling out this
form and mailing it in to the HFA with a check.)
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 publisher's 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 needs
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.<
A search for Hendrix's publishing was another matter
entirely. Depending on which performance rights organization I
searched through, both "Bella Godiva Music" and/or
"Experience Hendrix LLC" administered Hendrix's
publishing rights. To make a long story short, Experience
Hendrix LLC was the correct one. I sent my same "pre-fab"
letter to their P.O. Box (the only indicated address); it came
back three weeks later as "undeliverable to
addressee" because nobody signed for it. (Again, I sent
it certified w/return receipt—a bad idea for P.O. boxes,
apparently.) On a deadline by now (I was looking to release
this disc in a couple months), I located a phone number for
Experience Hendrix LLC and got the ball rolling that way. They
requested I e-mail their Music Publishing & Licensing
contact, asking them to e-mail me back (as an attachment):
"a downloadable version of the form I need to submit in
order to obtain a mechanical license for the making and
distribution of 1000 CDs—Track: 'Castles Made of
Sand'." I was also informed that they needed to approve a
copy of my "cover version" first, before they could
grant me a mechanical license. Fine by me! I sent them a CD-R
copy of my almost-final mix, with their filled-out e-mail form
(replete with Hendrix logo!), and a few weeks later, finally
got the official "go ahead."
So there you have it: Two of three possible paths for
legally covering another artist's song. In the end, if you go
direct to the publisher, you'll do away with the HFA's $10
filing fee. Personally, given the time it took "going
direct" (to say nothing of the anxiety it caused), I'd
gladly pay that $10 any day of the week! You'll just need to
weigh your own personal "time vs. money" options.
So what about licensing method No. 3? Well, if you've
exhausted all reasonable means and can't locate the copyright
holder(s) for the song(s) you've covered, you can file the
same Notice of Intention to Obtain a Compulsory License
with the Library of Congress, Copyright Office, Licensing
Division. Each song needs to be filed separately, and there's
a $12 filing fee (per song). The Library of Congress will
establish to whom royalties are paid by identifying the
copyright owner. At that point, you'll need to make all due
royalty payments—and make sure you pay! (Hint: "dot gov"!)
If you find you need to go that route, make sure you compose
your correspondence to these
specifications (PDF), as prescribed by the US Copyright
office. In the event you have any questions, the Library of
Congress can provide you with detailed instructions concerning
this form. Ask for the Copyright Office Regulations on
Compulsory License for Making and Distributing Phonorecords,
Circulars 96 Section 201.18 and 96 Section 201.19, and
address your request to:
Library of Congress
Copyright Office
Licensing Division, LM-458
101 Independence Avenue, S.E.
Washington, D.C. 20557-6400
Meanwhile, here's another
(PDF) sample of a "pre-fab" Notice of
Intention to Obtain a Compulsory License I found online.
Finally, be aware that being granted a mechanical license
does not mean you can reprint that song's lyrics in your CD's
sleeve. (You must clear these rights through the publisher
directly.) And samples—audio excerpts from the artist's
original master recording—need to be cleared differently;
for this, you must obtain a MASTER RECORDING LICENSE
directly from the record company that owns the master to the
recording. (Here's a PDF
sample for contacting record companies; I believe Harry
Fox used to offer this type of license, but has since
discontinued doing so.) Further, sale of MP3 downloads
requires a separate DIGITAL
LICENSE.
In the end, all the footwork I had to engage in (and
anxiety I had to endure) to legally take this "stocking
stuffer" to the next level was well worth the effort. I
now have a CD of songs I really like, performances I'm proud
of, and a nice memento of a personal "place in time"
that I can proudly distribute. I hope you some day consider
doing the same. Good luck!
Dale Turner may be contacted at www.intimateaudio.com
DTurnstyle@aol.com
. Click
here to view more of their articles.
In addition to being a performing/recording musician, Dale
Turner is also West Coast Editor of Guitar One
magazine, an instructor at Hollywood's Musician's Institute,
and has authored numerous guitar publications for Hal Leonard,
Cherry Lane, and Warner Brothers. His latest CD, INTERPRETATIONS
- Solo Arrangements for Guitar and Voice, has just
been released on the INTIMATE AUDIO label.
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