FROM THE DESK OF...SHELLY HARRIS!

Music Law:  Covering Another Artist's Song On YOUR CD

by Shelly Harris


    This month I’m addressing an issue that comes up frequently when bands
are considering including a “cover” version of a previously recorded song,
specifically the correct steps that must be taken and the fees potentially
owed to the owner(s) of such a song.

     Provided that song has already been recorded by another artist – which
is the typical scenario – then you will automatically be entitled to a
“compulsory license” from the music publisher/owner of that song.  You do
not need to ask for permission to use the song, but you do need to notify the
song’s owner and/or music publisher of your intent to it with a “Notice to
Obtain Compulsory License” at least one month before distributing your own
recording of the song to the public.  You can obtain versions of the kind of
form you need for such a Notice either online, or in one of several music law
books available to the public right now.

      Of course, you will need to determine where to send such a notice in
the first place, and one way to do that is to perform a search on the BMI and
ASCAP website to determine who the current owner of the song actually is and
where they are located.  In many cases, the owner may not be who you might
imagine.  For instance, it is possible that a song was not written by the
artist whose performance of the song you are most familiar with.  For
example, "All Along The Watchtower" may be best known to the public as a Jimi
Hendrix song, but it was actually written and performed by Bob Dylan earlier
in time. However, it is also possible that the original writer and/or
publisher of the song has sold or assigned the rights to another owner in the
meantime.  To determine the owner in that case, you can either find out from
a BMI or ASCAP Internet search (as mentioned above), or call one of the
representatives of those recording rights organizations to determine the name
and address of the actual current owner.

     After that, when you do record the song to a solid format (CD or
cassettes, etc.) what’s known as a “mechanical license” will automatically
be triggered.  If you are signed to a record label, your label would pay this
royalty per each unit pressed; if not, you or your band will have to pay it
to the song owner/publisher directly. A mechanical royality – as you might
remember from a past column – is the statuatory rate set by Congress. That
rate may vary slightly from year to year, but is currently over $.072 per the
number of units of that particular song that you press.   So, it you have
pressed 1000 CDs that include that particular song, you would then have to
pay the song owner approximately $72 for the use of the song. 
 
     However, as a side issue, note that record labels sometimes negotiate
with the song owner/publisher for a rate that is less than statutory, since
such deals are not prohibited by the Copyright laws.  It is possible as an
independent producer/label you might also negotiate a lower rate, but you
will have less clout in such circumstances if you have already recorded the
“cover” version, and if you are only producing a small number of the CDs
that include the song it in the first place.  Also keep in mind that the
mechanical royalties only apply to sound recordings without visuals.  You
cannot obtain a “compulsory license” for the use of the song in a video, on
the Internet, movies, commercials, or any other format involving visuals of
any kind without negotiating a separate, non-statuatory license with the song
owner.

     So remember, if you want to cover a song from Dylan, the Beatles or
Prince...you’ve got to pay the piper

Next month: A report from the 2nd Annual Americana Music Conference in
Nashville.