The Cover Song
Quagmire: Three Ways to Obtain Mechanical Licenses,
for Legally Recording/Distributing
Cover Versions on CD
by Dale Turner
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 (http://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 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 http://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!)
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:
(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 (http://www.mpa.org/).
After obtaining both publishers' 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 need 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,
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 #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
Library of Congress
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 about this; 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!
- - - - - - - - - - - - - - -
About the Author:
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.
© 2004 Dale Turner ALL RIGHTS RESERVED