| FROM THE DESK OF... SHELLY HARRIS |
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QUESTION:
I have started up a small indie label to record and promote
several local acts. However, one of our bands is thinking of recording their own
(rock) version of a well-known country song, since it goes over so well with
their live audiences. The band has changed the song name and the lyrics – as
well as the rhythm – slightly, but those who have heard the song in the past
would probably still recognize it. What steps do we need to take to record this
song without infringing on anyone's copyright and potentially getting sued later
on down the line? ANSWER:
Since the original song is still recognizable to a “reasonable”
person who has heard it before, it hasn't been changed enough to be considered a
completely new song in its own right, and, therefore, recording the song will
definitely trigger copyright/royality issues.
(Sometimes, even when the “original” song’s influence, etc., is not
even recognizable to many experts, you can still be successfully sued if a
court/jury decides that you borrowed a bit too much of another song, as was the
case with George Harrison’s “My
Sweet Lord,” which was decided to be derivative enough of The
Chiffons’ “He’s So Fine”
to be an infringement.)
However, no matter who wrote the song you are referring to, if it has
been released at least once before by another artist, it comes under the
umbrella of the federal copyright law pertaining to compulsory licenses and
mechanical royalties. Although you
will not own the song in any way, you will be entitled to a mandatory,
“compulsory” license to use the song (in other words, you won't need actual
permission to use it) –– provided you follow all the federally mandated
steps: 1) You must send a Notice of Intention to Obtain Compulsory
License to the copyright owners (often music “publishers”) at least 30 days
prior to distributing your band's recording of the song. (You should be able to find the name addresses of the song
owners via a search under the song name or songwriters’ names either on
ASCAP.com or BMI.com.)
However, the notice must include some essential steps/information such
the names of the song owners, legal entity seeking the compulsory license, any
fictitious or assumed names, such as the name of your label, address, the
label’s legal entity (corporation, LLC, LLP, partnership, etc.) and the owners
or officers of that legal entity, all the configurations of the recording that
you expect to release, the record's catalog number (if any), label name,
principal recording artists (i.e. the band), anticipated date of release,
closing, and signatures. Of course, this must be mailed to all the song owners,
preferably by certified mail, or any other mailing option that will produce a
receipt for your records. 2) You
must pay the federally mandated mechanical royalty rate to the owner(s) of the
song for each copy manufactured. (For the period January 1, 2002, to December
31, 2003, the statutory mechanical royalty rate is as follows: 8.00 Cents for
songs 5 minutes or less – or – 1.55 Cents per minute or fraction thereof for
all songs over 5 minutes.)
A
note on two side issues:
First, the Harry Fox Agency is the intermediary agency for licensing and
royalty collection for many publisher clients, operating as a sort of
information source, clearinghouse and monitoring service for licensing musical
copyrights. (However, though the
publisher you may be dealing with may or may not be a Harry Fox client, if it
is, you may have to pay certain additional administration/licensing fees to
Harry Fox.)
Second, the mechanical royalty rate stated above also applies to record
companies who have signed acts who are recording their own original songs. In
other words, the record label must pay the songwriters of the songs mechanical
royalties for each song that is recorded on the album, even when the songwriters
are members of the group signed to a “record deal.”
The catch is that such labels, in the course of the deal’s
negotiations, record label's like yours can (and often will) legally
“request” in writing that the artists/bands accept lower mechanical royalty
rates than the law sets forth, or request that the rates only apply to
recordings actually sold rather than the number of records manufactured.
3) Finally,
please note that you CANNOT use the compulsory license explained above if you
change the basic melody or fundamental character of a song, including lyrics!
If you do any of those things – which appears to be the case with the
band and song you are referring to in your question – then you must obtain
special permission to record your version of that song. As always, because even some of the seemingly “simple” areas of music and copyright laws are actually more complex than they may appear on first glance (and are often subject to very fact-specific issues), I would advise you consult an attorney before you act on any legal/copyright related issues. |
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