Cover Songs: Performing and Recording Them Legally
by Susan Basko, Esq.
See also: Cover Songs on Youtube for information about doing a live performance of a cover song and putting it on Youtube.
by Susan Basko, Esq.
See also: Cover Songs on Youtube for information about doing a live performance of a cover song and putting it on Youtube.
If you read my last post about Music Samples - How to Use Them Legally, you saw how complicated that is! Recording cover songs is MUCH easier! You may wonder why it is so much easier to record a whole song than it is to simply use part of a song that is already recorded. The difference is that the U.S. Copyright law gives you a statutory right to record a cover song, while it does not give you a right to use samples. Samples came about after the law was written, and the law has to evolve around the new uses of music. Law moves much slower than do art or technology.
WHAT IS A COVER SONG? A cover song is the everyday term for a song that is being performed or recorded by a different artist(s) than the one that wrote it or the one that first made it famous. For example, if you record or perform a Red Hot Chili Peppers song, that is a cover. According to the law, once a song subject to U.S. Copyright has been recorded and distributed publicly, anyone can obtain a license and record the song, and pay statutory royalty rates.
WHY COVER SONGS ARE GOOD FOR ROCK BANDS OR SOLO PERFORMERS: A cover song gets you noticed. Often, a cover song is the biggest seller in a band's repertoire. Listeners will be attracted to your band because they hear the familiar song, and they may then want to hear your own songs. They may even buy your own songs.
Cover songs are also tributes to the music and musicians you admire. Cover songs also give you a way to be creative within constraints, causing newness within the familiar. Cover songs give you a way to be part of musical history. You, too, can be one of the dozens of famous and not-so-famous bands that have recorded Ca Plane Pour Moi. If you sell songs on Itunes, when a user searches by song name, your name will be in the list with all the famous people that have also recorded the song.
THE AMAZING THING ABOUT RECORDING COVER SONGS: The most amazing thing about recording cover songs is that the statutory royalty rate is exactly the same no matter whose song you cover. The rate is the same whether you are covering Dave Matthews or the guy who plays the local open mic. This rate is set by law. (At this time, the rate is about 10 cents per copy you will make, give away, or sell.)
PERFORMING A COVER SONG LIVE: The rock band or solo performer does not need a license to perform a cover song live. It is the club, restaurant, or concert venue that is supposed to obtain a license or licenses for generally hosting music performances, which includes the live music as well as the recorded music they play over the sound system. These are licenses from PROs, or performing rights organizations, namely ASCAP, BMI, SESAC. These organizations sell licenses on their websites. They also send agents to clubs and restaurants to try to get them to buy a license.
Sometimes a venue or store will tell you that you cannot play any cover songs. This means they have opted not to buy any music performance licenses from the PROs. If you are told this, you must be very careful not to play those songs. Do not try to sneak them in.
If you are planning a residency or major tour where you will be renting venues, and you plan to play cover songs, part of the planning should be to be sure each venue has proper licensing.
Also, if you are planning a show or repertoire that is wholly or mainly cover songs, you should check with the applicable PRO to see if they insist you have a license. If the venues you play have licenses, you are covered. If you are producing your own shows at locations without licenses, you may need to obtain a license. Granted, most cover bands do not bother with any of this and simply forge ahead and play the cover songs.
If yours is a cover band, you will find some pertinent information at Picking a Name for Your Rock Band and Protecting Your Band Name or Singer Name with Trademark or Service Mark.
RECORDING A COVER SONG: If you want to record a song that falls under the jurisdiction of U.S. Copyright law, you have a statutory right to do so if it meets these requirements:
1) The song must be a non-dramatic musical work (not an opera or a musical play.)
- 2) The musical composition must be already recorded.
- 3) The previous recording has been distributed publicly in the U.S.; and
- 4) The use of the recording will be in audio only (not videos or music videos).
5) ALSO -- this statutory right is ONLY for songs that will be recorded and sold in the U.S.
So.. what does this mean? For the most part, it means that if you hear a song on the radio or on Itunes or on a bought CD, and it is not an opera or musical, and you want to make a recording of it yourself, but not a video, you can do that. That means you cannot use the compulsory licensing system to make a "cover" of a song from Les Miserables, but you can use it to make a cover of a song by The Ramones, System of a Down, Neil Diamond, Ben Folds, Vampire Weekend, Bob Dylan, Patti Smith, Simon and Garfunkel, etc. Note: If you want to cover a song from an opera or musical, contact the publisher directly and ask permission. It is not automatic and they have the right to say yes or no and to charge as they will.
COMPULSORY LICENSE: The compulsory license is compulsory for the songwriter/publisher, who MUST allow you to record the song, and you MUST pay the statutory royalty rate to the songwriter/publisher.
LIMITS: When recording someone else's song using a compulsory license, you do not have the right to change the lyrics or to change the basic character of the music. There have been lawsuits where a sedate or stuffy song was made raunchy or profane, or even lively. You have been given the right to make a "copy," but not to create a "derivative work." A new arrangement is a derivative work. You can and should "make it your own," but if you make a mess of it or make someone gasp, you might get a lawsuit.
MECHANICAL LICENSE: The license to record and sell a cover song is called a mechanical license. A mechanical is any song recording, including vinyl, CDs, or digital downloads.
MECHANICAL LICENSE AND ROYALTY RATE: A mechanical license is the compulsory license that allows you to record and sell someone else's song in the U.S., and in exchange you pay royalties to the songwriter at statutory rates, which is 9.1 cents per copy for songs 5 minutes and less. For songs longer than 5 minutes, it is 1.75 cents per minute, rounded up.
HOW TO GET THAT MECHANICAL LICENSE : Some songs are listed with the Harry Fox Agency, which is a non-profit agency established in 1927 by the National Music Publishers Association to handle mechanical licensing on songs. (NOTE: MANY songs are NOT listed with Harry Fox -- including songs by independent songwriters who are not signed with a publisher or who self-publish. But easysonglicensing.com covers those.) Harry Fox will issue you a limited quantity license for song recordings that will be produced and distributed within the United States. This service is called "Song File." Harry Fox charges a $15.00 processing fee per song and the royalty fees for the number of copies you estimate you will sell. If you are making more copies, they have plans for that as well. This is a convenient way to get the mechanical license.
The Harry Fox Songfile service can only be used for song recordings that will be produced and sold in the U.S. If the recording is going to be produced or sold outside the U.S., you need to contact the publisher directly. Songs produced or sold outside the U.S. are not subject to the statutory mandatory licensing, and the songwriter or publisher can deny you the right to record the song and can set any price.
EASYSONGLICENSING.COM: There is a company called Easysonglicensing.com which sells cover song licenses on its easy-to-use website. Easysonglicensing.com charges $15 plus royalties. Easysonglicensing.com represents the musician seeking the license. An advantage in using Easysonglicensing.com is that they can get you licenses from all the independent songwriters, not just those listed with Harry Fox. Limelight is designed by musicians for musicians and is very easy to use.
If you are selling online, please note the reach of the online store you are using. For example, Itunes has online stores specifically for the U.S., UK, Japan, etc. Therefore, it seems safe to use Harry Fox or easysonglicensing.com for the mechanical licenses for songs recorded in the U.S. that will be sold on Itunes U.S.
The music sold on Itunes UK is different than the music on Itunes US. Did you know this? Sometimes I have wanted to buy songs off Itunes UK and have not been able to access them from the U.S. Sometimes, the groups will then move their songs onto the Itunes US Store, but other times, I have to get the music a different way.
If your songs are all 100% originals, you do not need clearances and can sell on any Itunes store in the world. But if your songs include covers, you need to get international clearance from the publisher, or from the songwriter if the songwriter self-publishes.
(Royalties are handled differently in different countries. In many countries, with digital sales, the royalties will be deducted from the sale price, along with a service fee for the agency handling the royalties for that nation. If you are selling your own songs (where you own the songwriting copyright) overseas, you may have to apply to these different agencies to collect the amount that was deducted to cover your royalty. Practically speaking, you need a publishing administrator to do this, because of the complications of dealing with the foreign agencies.
If you are planning to sell overseas, check with the aggregator or with Itunes and see if the international store where you are selling will collect directly or if you will need to prepay. ALSO -- Consult with a music lawyer! Itunes international stores each cover a group of nations. You need to find out about the ones where you are selling. Basically, unless you can reasonably expect significant sales of a cover song in any given foreign market, the expenditures of handling things correctly will overwhelm any profit.
If you plan to sell your recordings of cover songs internationally, you should work with an experienced music lawyer on this. The process will differ from nation to nation, on whether you are selling downloads or physical copies, on the publisher, and on your own track record . You should budget a significant amount for the legal work on this. It's only worth it if you can expect significant international sales. If you are on a budget, I suggest that you choose one song only to sell internationally, and carefully select your markets. If you pick a song that is 100% covered by one publisher, you've made the legal work that much less complex.
If the song is not listed with Harry Fox or Easysonglicensing.com, or if it will be sold internationally, or if you prefer (I do not know why you would prefer to do this yourself when you can pay $15 and have it done for you by easysonglicensing.com or Harry Fox), you can locate the publisher or copyright owner of the song yourself, or ask the Copyright Office to do this for you for a fee. You then serve a Notice of Intention to Obtain a Compulsory License on the copyright owner (song publisher or songwriter, usually) or authorized agent of the owner by certified or registered mail. You can find instructions on how to do this at the this link for the Copyright Office.
You can contact the publisher directly. The major music publishers do licensing right on their websites. Some will not allow you to bargain for small numbers of recordings, in which case, you are better off using Easysonglicensing.com or Harry Fox SoundFile (if the song is available there, and the recording will be produced and sold in the U.S.) For example, some major publishers begin with a royalty fee of $200, which is for about 2200 copies. Most indie bands do a CD run of about 1,000 copies. At Easysonglicensing.com or Harry Fox, royalties for 1000 copies plus the $15.00 fee adds to $106.00.
But remember -- if you are selling outside the U.S., you must get the mechanical license directly from the publisher. Why is this? Because the law that was created by the U.S. government can only cover transactions related to the U.S. music industry.
Multiple Publishers or PROs on Same Song or with same band. (Please note that PROs are not involved in publishing and not involved in issuing mechanical licenses. PROs are mentioned here because their listings can be a good source to help you track down which publisher represents a certain song or songwriter.) When you are looking for the songwriters of a particular song, you may find that the co-writers on a given song may be represented by different PROs, or may have different publishing companies. There may even be U.S. PROs and foreign PROs, and publishing companies scattered about the globe, all for one song. This is especially so for groups from the UK where one or more of the members now reside in the U.S.
But, even with an American rock band, you may see that some songs are with one PRO, perhaps the PRO the songwriters were with in their early days and later songs are with a different PRO. The songwriters may have since signed on to a new PRO, but the songs may not have followed them. Moving a song from one PRO to another takes some doing and some may find it is not worth the trouble. Likewise, a publisher may have signed one band member as a songwriter, but may not have signed all the band members. So, just because a song is by a given band does not necessarily mean that every song that group records is with the same publishing companies or that each songwriter on the song is with the same publisher.
Some publishers will tell you that they do not own 100% of the publishing on a given song; they usually do not actually know who owns the other pieces of the pie. That's why it is your best bet to pay professionals to do song clearance for you.
HOW THE COMPULSORY LICENSING LAW CAME ABOUT: The compulsory licensing law was enacted back in the days when "songs" were popular and people bought their 78 rpm records more for the song than for the singer. This was way back in the days before rock bands existed. Back then, a song would become popular and all the singers would want to record it as soon as possible. Publishers started to hold onto songs so they would only be recorded by certain singers, who would make all the money. As a reaction to this, and to let songwriters bring their songs to the people, the compulsory license laws were enacted. The National Music Publishers Association created the Harry Fox Agency in 1927 to handle mechanical licensing. Easysonglicensing.com is a business that was more recently formed to do the same work.
Why they are called "mechanicals." Back when the law was established, and even now -- there were basically two ways to make music -- live performances, or by mechanical means. Back then, that meant player piano rolls and heavy, breakable records. Today, "mechanicals" include whatever technology brings about. Not long ag0, music was sold as records, 8-track tapes, and cassette tapes. Now it is sold as CDs and mp3s. Soon, it will be something else.
The royalties for performances are handled by PROS, namely ASCAP, BMI, and SESAC. Performances include playing live, and also songs played on the radio, over speaker systems at restaurants, bars, clubs, and stores, etc. These are not handled by Harry Fox. Harry Fox represents certain major music publishers in issuing mechanical licenses.
SONGWRITERS REGISTER WITH HARRY FOX AGENCY: Harry Fox allows any songwriter who has at least one song being recorded and sold by a third party to register their songs with the agency. If you are a songwriter and you want other musicians to be able to easily locate your song to obtain a mechanical license, apply to Harry Fox, and if you meet the requirements, register your songs. This is especially important if you self-publish your songs. How is anyone going to find you to get a license or pay you royalties? Please note, ASCAP, BMI and SESAC are performing rights organizations and they do NOT handle mechanical licensing or mechanical royalties.
If you are a songwriter, ideally, you will register your songs three places: 1) with the U.S. Copyright Office; 2) with one of the PROs (ASCAP, BMI, SESAC); and 3) with Harry Fox. You may also want to try to get a publisher and/or a licensing company interested in your music. The easier you make it for people to locate who your song belongs to, the more likely you are to make money from your songwriting. Aside from this, of course, you need to promote your song so that the right people hear it.
HOW CAN I FIND OUT WHO IS THE PUBLISHER? Many songwriters register their songs with the U.S. Copyright Office, and/or with one of the PROs - performing rights organizations, namely ASCAP, BMI, or SESAC. Below are links to those organizations, so you can search their databases. If a publishing company is not listed, the songwriter probably self-publishes. You can contact the PRO and ask for the publisher contact information.
At the Copyright Office, you can search online or you can pay the Copyright Office to search for you.
You then serve a Notice of Intention to Obtain a Compulsory License on the copyright owner (song publisher, usually) or authorized agent of the owner by certified or registered mail. You can find instructions on how to do this at the this link for the Copyright Office.
SONGWRITERS FROM OTHER NATIONS: There are PROs in other countries, too. If you know a songwriter is from the UK or Australia, for example, and you cannot find their songs in the U.S. databases, then check the PROs from their nations.
RECAP:
To perform a cover song, just be sure the venue has the PRO licensing (or perform the song and assume they are covered).
To record a cover song in the U.S. to be sold in the U.S., use the Easysonglicensing.com or Harry Fox Song File system OR DO IT YOURSELF AND locate the publisher, serve them with proper notice, and pay the statutory royalty rate.
FOR INFO ON USING SAMPLES AND MAKING REMIXES, See Music Samples - How to Use Them Legally.