rules/royalties for cover tunes?

[cgrafx]

So now that the band I play in has a few demo songs under our belt, (the latest are actually starting to sound pretty good), I was wondering if some kind sole could give me the basics regarding copyright/royalties/ASCAP or other involved entities.

Clearly there are cover tunes being played on SAW Radio.

If we wanted to submit cover material to SAW Radio, what permissions or ??? would we need to get?

any insight is welcome.

thanks,

Phil G.

[Dave Labrecque]

Like with any "venue", I believe the licensing is solely up to the venue operator/owner.

When the various artists got pissed that the Republicans were using their songs for their national convention, they (the artists) were out of luck because the venue (The Excel Energy Center in St. Paul) had (allegedly ;)) paid their ASCAP/BMI fees, which cover public performance of such songs within their walls.

Radio stations pay licensing fees in order to have permission to play music as part of their programming.

Not sure what the law is regarding "Internet radio", but I bet it's similar.

Bottom line, though, I think, is that it's not your worry.

[cgrafx]

Its not a performance issue ( oh my.. did I say that :o )

The question specifically is if we record somebody else's songs what obligations do we have to the copyright holder in order to publish the song online or to someplace like SAW Radio.

pg

[Dave Labrecque]

Its not a performance issue ( oh my.. did I say that :o )

The question specifically is if we record somebody else's songs what obligations do we have to the copyright holder in order to publish the song online or to someplace like SAW Radio.

pg

Well... like I was saying... it depends on the specific "venue", I think. The word "performance", btw, in this licensing stuff isn't restricted to actually playing the song live, I think. Sorry for the confusion on that.

For example, ASCAP says (from http://www.ascap.com/licensing/termsdefined.html):

ASCAP has the right to license "non-dramatic" public performances of its members' works - for example, recordings broadcast on radio, songs or background music performed as part of a movie or other television program, or live or recorded performances in a bar or restaurant.

That's why we can play cover songs in bars and why the RNC can play songs by artists who wish they wouldn't.

As long as you're not making money off it, I think it's completely up to the party responsible for disseminating it to handle the licensing. Eg., SAW Radio. If you make it available elsewhere -- say, MySpace -- I believe it's up to MySpace to handle any fees.

Now, if you're actually collecting money from the distribution of the song in some way, then I think you're on the hook for some kind of permission/percentage payout. And I believe these are negotiated case-by-case with the publisher.

I have a client who's live show consists of covers. I record his shows, from which he makes and sells CDs. If I remember right, he told me that he has an agreement with the publisher of the songs to pay x amount for each CD sold; something like that.

Not my area of expertise to be sure. Look up John Ciccone. He's a former SAWyer and forum contributor. Also a real nice guy. He lives and breathes this stuff; clearances is/was a big part of his business. He could set you straight. In fact, here's his Q&A:

http://www.copyrightmv.com/FrameRArticlesQA.htm

Actually, this looks like really good reading for many of us. Lots of good info here. It may answer you more directly than I can. Looks like it's more film-oriented, but perhaps a good start.

I've reached John in recent years through his website, above, so you may want to try that.

[cgrafx]

thanks Dave,

I'll take a look.

pg

[Kimbo]

My band's last CD the Blind Chitlin Kahunas live had a 15 minute live recording of Voodoo Chile . I tried to do the right thing by getting in touch with the hendrix people ( not available thru Harry Fox agency). we were willing to pay for all 15 minutes. After 5 minutes it's by the minute. About $300 to tham for 1000 copies and no downloads. Any way, they denied us the right to put it on the Cd claiming that the 9 minutes in the middle was an original composition and they don't allow original composition to be tied with a Hendrix song. It really blew my mind. I thought when somethng was published you had the right to use it as long as you paid the fee. :confused:
We ended up not using it. Oh yea. I faded in the 9 minutes of our original composition and titled it "talking to aliens" :rolleyes:
the new Cd will be all original!!!!!!!!!

[Dave Labrecque]

Woah!!!!
Copyright laws are very strict. And, it's in the ear of the lawyer beholder.
If an artist wants to make every dime on their music, they'll get it. When you record a song and put it anywhere, it can be considered 'public performance', and someone wants a cut.
Even Internet Radio ... if you do it right, and not just stream freely, BMI wants the Internet radio station to cough up $10,000 just to be in the game. And, this refers to Non-Commercial. Many guys are getting out of the Internet Radio biz, because the non-commercial licensing for heavily hit sites could be $1,000 to $2,500 per month. Yes, NON-Commercial.
So, when you are ready to record some covers, please get in touch with your local around the corner neighborhood lawyer, and make sure you're covered, before it runs into a 'stop and desist' legal battle.
I'd like to hear Mark's take on this subject. Mark, you've been in that end of the business, what do you think?

Help me out. If I record a cover song and it gets played, on a local FM station or an Internet radio station or in a bar, why should I worry about licensing? All those venues are paying license fees to play music (or so we assume ;)).

Sales of the recording would be a different beast, of course.

[TotalSonic]

My understanding is that you are required to pay for a mechanical license in order to place copies of your recording of a cover tune onto a physical media (i.e. CD) whether they are for sale or not.

You can obtain mechanical license for replication runs under 2500 units for the works of the vast majority of artists and composers directly online at http://www.harryfox.com/public/songfile.jsp

further info from this page:
Songfile licensing is a tool to obtain mechanical licenses in a quantity of 25 to 2500 units for physical recordings (CDs, cassettes, vinyl) made and distributed in the U.S., or to create and distribute full permanent downloads of a song from a server located within the U.S., at the current statutory mechanical rate

I've used this service in the past myself - usually runs around $80 or so per song for a 1000 unit run.

As far as broadcasting though - afaik the broadcaster is the one responsible for paying the royalties due from the broadcast - not the label or the artist.

Best regards,
Steve Berson

[Bill Park]

So now that the band I play in has a few demo songs under our belt, (the latest are actually starting to sound pretty good), I was wondering if some kind sole could give me the basics regarding copyright/royalties/ASCAP or other involved entities.

Clearly there are cover tunes being played on SAW Radio.

If we wanted to submit cover material to SAW Radio, what permissions or ??? would we need to get?

any insight is welcome.

thanks,

Phil G.

to get back to the original question, much of what you are looking for can be handled by the Harry Fox Agency, and I believe that a lot of it can be done on line now. That secures you the right to record and distribute the material. It is true that there are many songs not handled by Harry Fox, and these are often written by artists who want to have more control over who can and cannot use their material. It is usually a waste of time trying to deal with them.

Bill

[UpTilDawn]

... It is true that there are many songs not handled by Harry Fox, and these are often written by artists who want to have more control over who can and cannot use their material. It is usually a waste of time trying to deal with them.

Bill

That's debateable Bill... I imagine it depends a lot on the genre of the artist/material.
There have been many times when our big band director has needed to go outside the H.F. agency and/or directly to the artist/publisher to get permissions. To my knowledge, he has been succesful all but once or twice after nearly a dozen cds.

DanT

[Dave Labrecque]

My understanding is that you are required to pay for a mechanical license in order to place copies of your recording of a cover tune onto a physical media (i.e. CD) whether they are for sale or not.

You can obtain mechanical license for replication runs under 2500 units for the works of the vast majority of artists and composers directly online at http://www.harryfox.com/public/songfile.jsp

further info from this page:
Songfile licensing is a tool to obtain mechanical licenses in a quantity of 25 to 2500 units for physical recordings (CDs, cassettes, vinyl) made and distributed in the U.S., or to create and distribute full permanent downloads of a song from a server located within the U.S., at the current statutory mechanical rate

I've used this service in the past myself - usually runs around $80 or so per song for a 1000 unit run.

As far as broadcasting though - afaik the broadcaster is the one responsible for paying the royalties due from the broadcast - not the label or the artist.

Best regards,
Steve Berson

Thanks for the info, Steve. Two questions, then:

1 Does this imply that the first 24 CDs do not requiring licensing?
2 How does one get a copy of the song to the radio station without incurring a fee of his own?

Maybe that's what the first 24 discs are for? :)

I guess there's the Internet, too. (Email and FTP, that is, rather than "full permanent download".)

[TotalSonic]

Thanks for the info, Steve. Two questions, then:

1 Does this imply that the first 24 CDs do not requiring licensing?

No - instead it implies that the license for 24 discs or under costs just as much as the license for 25.


2 How does one get a copy of the song to the radio station without incurring a fee of his own?

By breaking the law ;)


I guess there's the Internet, too. (Email and FTP, that is, rather than "full permanent download".)

Honestly I think with digital distribution things get more complicated and nebulous (with many legal issues regarding this still being defined and resolved) - so I really don't know the answers to all of this.

Best regards,
Steve Berson

[UpTilDawn]

Originally Posted by TotalSonic
...Songfile licensing is a tool to obtain mechanical licenses in a quantity of 25 to 2500 units for physical recordings (CDs, cassettes, vinyl) made and distributed in the U.S., or to create and distribute full permanent downloads of a song from a server located within the U.S., at the current statutory mechanical rate...


Weird, my way of reading a statement like this is that NO rate is specified for anything under 25... of course, I'm probably wrong and that's why I have such a tough time understanding legal gobbledygook...:rolleyes:

DanT

[Bill Park]

... I imagine it depends a lot on the genre of the artist/material.....

DanT

That is a fair statement, although I would expect most anyone of any degree of popularity to either be represented, or to want total control.

Bill

[cgrafx]

Ok.. there is clearly not a CLEAR answer here. I Don't want to sell copies of CDs, I don't want to sell anything.

These are simply demo songs that we have of our band.

However, If we put a copy up on myspace, clearly we are not the copyright holder.

If I send a copy to Bob to run on SAW Radio (again there is already cover material being played there), what licensing is required if any.

HFA deals pretty much exclusively with mechanical rights (production and sale of physical media).

BMI has licensing for Radio Stations, but we are not a radio station.

The more I look the more confused I get and my brain hurts...:confused:

Phil G.

[DaveS]

One of my clients several years ago was going through a similar issues with a CD they wanted to sell at local gigs.

One of the things that I got from their experience was that once a song is is published into the 'real' world, the original copyright owner cannot refuse to grant performance/recording rights to anyone who so deisres to do so. And, the payment is at the rate specified in the copyright laws - I think at the time it was $0.075/song/disk up to 3 minutes and then a flat per-minute fee after that or somehting similar. Now, if you are changing the song, then yes there can be problems but I believe the copyright laws had clauses that handled derived works and medleys..

Of course if you are using part of the original recording - samples and such - it's a whole new ballgame and it gets very expensive.

Regarding the Foxx agency 25 and up - that is a limit that they put on themselves - they don't want to be bothered with less then a 25 hit license... You can certainly license one recording if you wanted to - you need to get in touch with the original copyright holder and send them a letter of intent. Some will say go ahead, and maybe ask for a copy for themselves (then I guess you need to ask for permission to license two..) and they may or may not charge you - and it should be at the rate specified by the copyright law.

I thought that MySpace has a clause that if you do not own the copyright for a song that you are not permitted to post it on your MySpace page? I thought this interesting because I think a LOT of (probably most) of the people that post there probably don't have the copyright licensing in place. MySpace is probably just trying to give themselves an out should they get sued.

Just to be clear - I am not an attorney and make no claim that these are the facts today...things may have changed over the past few years but this is what my current understanding of the laws are.

[Pedro Itriago]

Ok... I don't want to sell anything.

These are simply demo songs that we have of our band.


You're selling your band. Or have I missed what a demo is for?

[cgrafx]

You're selling your band. Or have I missed what a demo is for?

It was intended for a couple of uses.

1. As a demo to sell the band. (our website, myspace, local venues, talent agencies)

2. As an entry into a local radio station last band standing contest.
(note all the music by all bands submitted to this contest are covers)

3. The recordings are good enough I thought we might send them to bob to run on SAW Radio.

pg

[Dave Labrecque]

Originally Posted by TotalSonic
...Songfile licensing is a tool to obtain mechanical licenses in a quantity of 25 to 2500 units for physical recordings (CDs, cassettes, vinyl) made and distributed in the U.S., or to create and distribute full permanent downloads of a song from a server located within the U.S., at the current statutory mechanical rate...


Weird, my way of reading a statement like this is that NO rate is specified for anything under 25... of course, I'm probably wrong and that's why I have such a tough time understanding legal gobbledygook...:rolleyes:

DanT

That's how I read it, too. FWIW. :rolleyes:

[Bill Park]

Ok.. there is clearly not a CLEAR answer here. I Don't want to sell copies of CDs, I don't want to sell anything.

These are simply demo songs that we have of our band.

.
Phil,

This is what most guys don't understand. The songs in question are not yours, so from a legal standpoint, you can't distribute them. Not for free. Not at all.

And as has been mentioned previously, you are promoting your band, so you do hope to gain something or other from placing the songs in question where others can hear them.

You have a responsibility to obtain releases when you record the songs. The media has a seperate and distinct responsibility to account for the use of the songs. The use of materials covered under copyright is clear, and there is no 'except fo on the internet' clause written into the codes.

Interesting side note, these issues were covered in the original Constitution of the US. I looked it up a long time ago, and it (the recognition of intellectual property rights) is covered early in the document.

Bill

[cgrafx]

Phil,

This is what most guys don't understand. The songs in question are not yours, so from a legal standpoint, you can't distribute them. Not for free. Not at all.

And as has been mentioned previously, you are promoting your band, so you do hope to gain something or other from placing the songs in question where others can hear them.

You have a responsibility to obtain releases when you record the songs. The media has a seperate and distinct responsibility to account for the use of the songs. The use of materials covered under copyright is clear, and there is no 'except fo on the internet' clause written into the codes.

Interesting side note, these issues were covered in the original Constitution of the US. I looked it up a long time ago, and it (the recognition of intellectual property rights) is covered early in the document.

Bill

I fully understand. That was the reason for my question in the first place. The problem or confusion lies in the available licensing.

ASCAP/BMI seem to have licensing that relates to venues or other distribution channels (radio/tv), but not for play by the performers.

Harry fox deals with mechanical publishing (sheet music, CDs), not performance licensing.

And last but not least (I'm not saying this is right or wrong). No cover band in the world, licenses the songs they play. Radio and TV stations around the world explicitly solicit just such music every time there is a music contest.

From last band standing to American Idol, I can 100% guarantee that there was no license obtained to sing or play those songs. (at least not until late in the game).

phil g

[Dave Labrecque]

From last band standing to American Idol, I can 100% guarantee that there was no license obtained to sing or play those songs. (at least not until late in the game).

phil g

At the risk of sounding like a broken record :p, in those cases I believe the TV network pays for the license to air them, the venue they're performed in (much like a bar) pays for the license to have them performed in front of people.

Again, it's like the bar or the shoe store or the radio station, no license was obtained per se (i.e., for the specific event), but typically monthly fees would be paid that give them a blanket license to allow those performances along with any other incidental use of such music. Just like at the RNC.

Unless I'm mistaken. :rolleyes:

[Cary B. Cornett]

At the risk of sounding like a broken record :p, in those cases I believe the TV network pays for the license to air them, the venue they're performed in (much like a bar) pays for the license to have them performed in front of people.

Again, it's like the bar or the shoe store or the radio station, no license was obtained per se (i.e., for the specific event), but typically monthly fees would be paid that give them a blanket license to allow those performances along with any other incidental use of such music. Just like at the RNC.

Unless I'm mistaken. :rolleyes: From what I have been told from various sources, you are not mistaken. Performance/mechanical royalties come from the "distribution channel". A band under contract to a record label does not pay royalties for "cover tunes" because the record company pays them. A band playing in a concert venue, bar, club, whatever, doesn't pay because the venue pays (blanket fees, which are also how radio stations pay).

Now, if a band records and sells their own product that involves cover tunes, they are their own record company, and just like any other record company, they are liable for the applicable royalties.

What I don't know for sure is whether this applies to copies that they GIVE AWAY FREE.

That said, I think there are situations where the license holders see no point in going to the expense to deal with the collection costs where they might only have a few dollars coming, provided they don't get their nose rubbed in it. Some will sort of "not see" the really small stuff so long as no one gets they idea that they can "get away with it" on a scale that DOES hurt the owner of the rights.

[Naturally Digital]

From last band standing to American Idol, I can 100% guarantee that there was no license obtained to sing or play those songs. (at least not until late in the game)Phil, 100% sounds pretty confident. :rolleyes::)

I can assure you the songs performed on Idol are all licensed and cleared... In fact, many songs don't make it to air (or past the rehearsal stage) because the rights-holder refuses to license their material for whatever reason(s).

As far as the specific scenario you are asking about in this thread, I don't have the knowledge to comment. In regards to the above specific situation (Idol), you can consider my input 100% accurate. ;)

FWIW there is a ton of useful advice already in this thread. I encourage you to go as legit as you possibly can (if you intend to "publish" your cover tunes on some sort of radio or public airwaves - internet or otherwise). You'll sleep better having gone down that road and you may end up better off for it in the long run.

[Demodave]

Interesting story...

The KOMP morning show with Lark Williams were great friends with Sam Kinison. Sam recorded a version of "Are You Lonesome Tonight". The song started out with Sam singing it like the original....but by the middle, Sam broke in to a full-on rant with the screams and all. Great version of the song that was professionally recorded in the studio. From what I understand, the original copyright holder of the song heard Sam's version and denied permission for it to be used on his CD. She hated it!! So it never got released.

If you look around the internet, I think you can find a bootleg MP3 of the tune.

--Dave

[Dave Labrecque]

Interesting story...

The KOMP morning show with Lark Williams were great friends with Sam Kinison. Sam recorded a version of "Are You Lonesome Tonight". The song started out with Sam singing it like the original....but by the middle, Sam broke in to a full-on rant with the screams and all. Great version of the song that was professionally recorded in the studio. From what I understand, the original copyright holder of the song heard Sam's version and denied permission for it to be used on his CD. She hated it!! So it never got released.

If you look around the internet, I think you can find a bootleg MP3 of the tune.

--Dave

Which brings us to the concept of parody. I know that there are exceptions to otherwise standard licensing law when a song is deemed to be a parody of an existing song. But I don't remember the specifics.

It's probably something like... on a morning radio show, they can do it and have no fee incurrence cuz they're not making money off it (as in sales for money), but if you press it and distribute it (for sale?), you need permission.

Anyone know about this?

I remember seeing a Weird Al Yankovic video showing the parody-meister having an audience with the King of Pop (kneeling before the enthroned King) in order to gain permission record and release "Eat It". And I remember thinking, "It's a parody. Why would he have to do that?"

[Dave Labrecque]

Not exactly sure, but I believe the copyright laws protect the melody as well as the lyrics....with a maximum number of measures of music allowed before it is considered a copyright violation.

So even if the lyrics were different, a parody, like Weird Al has made a career of, would copy the melody.

Mark

Quick Google: "fair use" is what I was thinking of.

From http://www.publaw.com/parody.html


Since copyright law prohibits the substantial use of a copyrighted work without permission of the copyright owner, and because such permission is highly unlikely when the use is to create a parody, it may be necessary for the parodist to rely on the fair-use defense to forestall any liability for copyright infringement. However, the fair-use defense if successful will only be successful when the newly created work that purports itself to be parody is a valid parody.

Apparently not all too cut and dried. But I knew there was some kind of defense out there...

[cgrafx]

Phil, 100% sounds pretty confident. :rolleyes::)

I can assure you the songs performed on Idol are all licensed and cleared... In fact, many songs don't make it to air (or past the rehearsal stage) because the rights-holder refuses to license their material for whatever reason(s).


Yes, I'm sure they are cleared by the network before they air the segment, that wasn't my point. The TV station/Network was the responsible party. I am very sure that NONE of the performers had a license to perform the songs.

philg

[Bill Park]

...If the song is not represented by Harry Fox, then you simply need to give 30 days notice to the copyright holder that you are applying for a compulsory mechanical license allowed by U.S. copyright laws.




Mark

I'll take your word on this, as my only experience has been with companies that wanted to use the material for corporate events or for commercial use, and that is a whole different ballgame.



Bill

[Dave Labrecque]

Your link is to an opinion of an attorney or law frim that seems to contradict what the info from the U.S. Copyright office is in regard to permission NOT being needed to re-record a song....only a license...or a compulsory license.

Although I would certainly think a copyright holder would have some recourse if a parody were to be in bad taste, or detrimental to the copyright holder's character or potential for future income.

Mark

Right... parody is an exception to copyright law.

I'm certain that this fair use defense of parody is fairly common and accepted. Radio shows do parodies all the time with no problem.

The point of fair use is that it's likely that the original artist wouldn't like it. It protects the person re-recording the song in an effort to make a personal statement about the original. Kinda like free speech, only different. :)

I think successful suits against parodists are few and far between. In fact, I think such suits are rare because of this fair use principle. It's understood.

I can't think of any parodies that have been shut down because of some kind of litigation. Can you?

[Dave Labrecque]

I'm familiar with the Sam Kinison version of "Are You Lonesome Tonight" that Demodave mentioned. A friend of mine worked on the recording session as assistant engineer. I think Dave is right that it was never released. Perhaps Sam chose not to pursue it.....so who knows.

If you haven't heard it, it's worth pursuing because it's very funny. There are some you tube videos of it as well.

mark

I'll have to check it out.

To clarify... I'm not so sure you can sell records of a parody without copyright implications. But just recording a song for the radio, I think, is pretty risk-free.

[Dave Labrecque]

http://www.youtube.com/watch?v=34AEnJ0qsyI

Funny stuff. I forgot how funny and unique he was. What a loss.