written by: David Frazee
I know how important copyright is, and I know that it can also be completely confusing and overwhelming… so I’m breaking it down and going through it, bit by bit.
This is the second article in the Copyright series. If you missed the first article, please take a moment to go back and read it before continuing this one.
Let’s say you’ve got your first big gig coming up, and you need a set list to fill 90 minutes. You have a bunch of original content, but you also know that the cover song can really bring in a new crowd. There are a few songs you have in mind, but you’re worried about copyrights. How do you protect your songs, and how do you avoid trouble for doing cover songs?
If you have not given all of your public performance rights to someone else, you have the right to perform your own songs in public. However, because you are performing your songs in public, you should ensure that you have done everything you need to secure your rights to the song (such as filing with the copyright office).
If someone is asking to perform one of your songs, you may be wondering if there is a benefit to granting another artist performance rights. In short, yes. The benefits include the royalties you receive for the use of your musical composition and, of course, exposure of your music to more potential fans. If you have signed some of your musical composition rights to a publishing company, the publisher may have a right to some of your royalties.
If you want to perform a song someone else created, you will need a “public performance license.” There are two ways to obtain this license.
First, you could go to the copyright owner. Likely, the artist’s publishing company administers the licensing for the song, so you will need to find out who the publisher is and contact them to obtain performance rights. Contracts for performance rights negotiated directly with the publisher can vary in a number of ways, but it will be a non-exclusive right (meaning you do not own the song) and, unless agreed to otherwise, you will need to negotiate this right for every song and every performance.
The second, and easier, way is for the venue to go through a Performance Rights Organization (PRO). PROs work with restaurants, concert halls, nightclubs, hotels, and other venues to grant performance licenses. There are three main PROs that copyright owners use to track and issue licenses for performance rights: Broadcast Music, Inc. (BMI); the American Society of Composers Authors (ASCAP); and Society of European Stage Authors and Composers (SESAC). Nearly 100% of recorded artists are registered with one of these organizations. Venues typically (but not always) receive a non-exclusive “blanket license,” which will allow performing artists to use any of the PRO’s songs. It is likely that the venue you are performing at has already obtained the proper license from the PRO and is responsible for making sure the royalties are paid. So, look online for which PRO administers the performance rights to the song you want to cover, and ask your venue if they have the rights from that PRO.
Lastly, and this is important: obtaining the rights to perform the music does not allow you to record your live performance of that song!
Speaking of recording… Let’s say you’ve been gigging a while and have developed a loyal fan base—so loyal that they keep asking if you have music they can buy and listen to when you aren’t playing gigs. (Awesome!)
Pumped, you start pulling together your best songs for a recording session. You’ve got eight or nine solid originals, but there are two cover songs you do that get the crowd up and dancing, every single time. You’d love to record those, too. Can you?
As far as songs you’ve created, you have the right to sing, record, and distribute your songs freely (unless, of course, you have given your rights away).
To record your song, you may have to give up some rights. Often, record label contracts will contain a clause that prevents you from recording other versions of your songs without the original label’s permission. The contract might also have you give up some or all of the sound recording rights to that final product. Read all contracts carefully, with a lawyer, before signing! While you may need to give up some or all of your sound recording rights, you should still own the rights to the underlying music.
If another artist wants to record your original songs, granting them recording rights can bring you exposure for your songs as well as royalties.
To legally record your version of songs someone else created, you need to obtain reproduction rights from the copyright owner. Specifically, you need a “mechanical license,” which gives you the rights to reproduce and distribute others’ songs on your own album.
You can obtain this license from the copyright owner through negotiations. Since it’s a complicated and time consuming process to track everyone who wants to use your songs, most copyright owners use the Harry Fox Agency to manage their mechanical licenses. This is a good place to start if you want to obtain a mechanical license.
All copyright owners are given the rights to “first use” of their songs, meaning they get the opportunity to release the first public version of the song. After the song has been published, anyone can obtain a “compulsory license” by providing notice to the copyright owner and following a specific process. This allows you to still legally record the song, even if you’re having trouble obtaining a mechanical license from the creator or original artist.
Please note that a mechanical license does not give you the right to post your version of the song on YouTube. We will get to this later.
You’ve gotten your songs back from the recording studio—fully mastered and ready for release. You want to order physical albums to sell, since they have good profit margins and some of your fans like buying merch at shows (they’ve asked, repeatedly, if you have any CDs). You’re also interested in selling digital versions of the album and individual songs—including those cover songs.
Manufacturing and selling songs you’ve created incorporates your reproduction (copying) and distribution (selling) rights in both sound recording and the underlying music and lyrics. If you use a record label, you may have to give away some or all of your sound recording rights. In doing so, you likely give them the right to distribute and reproduce copies.
Also, by publishing your music to the public, others can now obtain a compulsory license to reproduce your music now. The benefit is of course the money you received in exchange for these rights.
Now, let’s talk about legally manufacturing and selling songs someone else created. As discussed above, you need a mechanical license to create and sell your new songs without infringing the copyright of the songs you covered. If you are working directly with the copyright owner, make sure you obtain the right to “distribute” the cover song; otherwise, you may have the right to use the musical composition in a new recording but cannot do anything with that recording.
As discussed previously, the easier method of selling your cover songs is to obtain a “compulsory license” by providing notice to the copyright owner and following the specific process laid out in statutes.
There is something else to consider: digital versus physical copies. These are two very different mediums, and the music industry rightfully makes a distinction. You can obtain the right to sell permanent copies in either medium by obtaining a mechanical license or a compulsory license, but having the right to one medium does not mean you have the right to the other. The Harry Fox Agency has two different forms; make sure you have obtained the right license!
There’s one more thing worth noting on mechanical licenses: they are for a set number of specific sales (for example: 1,000 CDs, or 10,000 downloads) and will need to be renewed for additional copies.
Next in the Copyright series: Streaming, Creating Music Videos, and Licensing Music. Be sure to check back and find out more!
Disclaimer: The above article is not legal advice; is it not intended to, nor can it, replace professional legal advice in any way. It is only intended to provide a short guide to basic legal terms and practices in the music industry. In your own interest, consult with a copyright attorney before entering into any contractual agreement or taking any action against copyright infringement.