music industry survival manual-volume 1.1, music publishing and copyright: cover songs

8/8/2019 Music Industry Survival Manual-Volume 1.1, Music Publishing and Copyright: Cover Songs.

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THE BASICS YOU SHOULD KNOWABOUT MUSIC PUBLISHING AND COPYRIGHT: COVER SONGS

BY KEN GOES, FORMER MANAGER & PUBLISHING ADMINISTRATOR

for THE PIXIES

IMPORTANT: The information in this section is not intendedas legal advice.

This section is about music publishing. Music publishing is about the

ownership o songs. Music publishing is about the rights o songwriters

and song owners. And perhaps most importantly, music publishing is

about money.

Music publishing can be complex and conusing. Our aim here is to

simpliy the most basic concepts o music publishing as they relate to

covers. Covers are normally songs written by established artists like,

or instance, Yesterday by The Beatles. But covers dont have to be

popular songs. A cover can be a song that has been recorded by an

unknown artist. The important thing to remember is that any song which

you record that was written and previously recorded by someone else is

a cover.

is it a sound recording or a composition?

The rst thing we have to understand is that a song

and a recording o a song are two dierent things.

They are two distinct properties. These two prop-

erties are called the sound recording, (sometimescalled the master) and the composition, (some-

times called the work). Music contracts o all types use these terms to

designate one or the other.

Here we are mainly interested in the composition. The common every-

day word we use or composition is the word song. In the ollowing,


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whenever you see the word song, you can think composition and when-

ever you see the word composition, you can think song. These two words

are synonymous and are used here interchangeably.

Like all property, these two

properties, the sound recordingand the composition, come with

rights. Just as you have a right to

determine who uses your personal

property, owners o the sound

recording and owners o the composition (song) have the right to deter-

mine who uses their property.

Who owns what? Lets see by way o the ollowing examples. Lets sayyou record the Beatles song Yesterday, probably the most covered

song in history. Since you have made the recording, you own the property

called the sound recording, that is, your particular recording o the song.

But the recording is a cover o a song. You did not write the song. You

do not own the song. The song is owned by the Beatles, (or more likely a

music publishing company, but more on that later). The song or composi-

tion is also property.

Another example : Lets say three separate bands record the song Yes-

terday. We still have only two properties : three o one kind : the sound

recordings, and one o the other kind : the composition. To sum up, we

have the composition and we have the sound recording o the compo-

sition. Two separate properties.

intellectual property

These kinds o property are called intellectual property. Other kinds

o intellectual property are books, movies, paintings and so on. And, as

mentioned earlier, these properties come with rights. The particular right

you have to your sound recording and the particular right the Beatles

have to the composition is called a COPYRIGHT. A copyright is the right

to reproduce or make copies. This right is granted by the United States


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Copyright Law and similar laws in other countries. I you would like to

learn more about the United States Copyright Law, please go to:

http://www.copyright.gov/circs/circ1.html#wci

Only the owner o the song has the right to reproduce or make copies o

his or her song. The owner also has the right to grant permission to othersto reproduce or make copies o his or her song. So, beore you can record

and make copies o someone elses song, you need to get permission rom

the owner. You get that permission by getting a license, just like you get

permission to drive by obtaining a drivers license.

This license is called a mechanical license. By getting this mechanical

license rom the songwriter or rom a music publishing company acting on

behal o the songwriter, you will then have permission to record, repro-

duce or make copies o the song.

publishing companies

A word about music publishing companies and the ownership o songs

- The songwriter is the owner o the song. But most songwriters do not

look ater the rights to their songs. Issuing licenses or the use o a song,

collecting the royalties, accounting, etc. is a lot o work. This kind o workis called administration. In most cases, songwriters have music publish-

ing companies do this administration or them. But in many cases, the

songwriter sells the song to the music publisher. In this case, o course,

the music publisher is the owner o the song and the rights that go with it.

But whether the music publishing company owns the song or administers

the rights to the song on behal o the songwriter, the music publishing

company will issue the mechanical license.

To sum up : getting a mechanical license gives you permission to repro-

duce (copy) the song. O course, in using TuneCore, the song is being

reproduced digitally, but its the same principle : every time someone

downloads the song, a copy is made.


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who gets paid

For every copy sold, the songwriter or publisher must

be paid. The amount required to be paid or the sale

o each copy o a composition is called the mechani-

cal royalty. The royalty rate is established by the

Copyright Royalty Board o the Library O Congress;a government agency empowered by Congress to de-

termine the royalty rate. The royalty rate set by the

Copyright Royalty Board is called the statutory rate.

Statutory is a ancy legal word meaning required by law. So, the rate set

by the Copyright Royalty Board is the statutory mechanical royalty rate.

The current statutory mechanical royalty rate that must be paid to the

song owner or publisher is 9.1 cents ($.091) per copy. When you record

a cover song, every time that recording sells, you owe the songwriter or

publisher 9.1 cents. All mechanical licenses will speciy this rate. Some-

times the rate is specied in pennies; otherwise the license will speciy the

statutory rate. In some cases, you can negotiate with the songwriter or

publisher or a lower rate, but unless you can demonstrate that you will

have enormous sales, the likelihood o getting a lower rate is slim. Finally,

the rate does not remain static or permanent. In act, as I write this inFebruary 2008, the Copyright Royalty Board is considering a change in the

statutory rate.

compulsory licenses

A word about the Compulsory License. You may have heard o some-

thing called a compulsory license. The U. S. Copyright Law allows you to

get a compulsory license in lieu o getting a mechanical license directlyrom the publisher or songwriter. But this method is a lot more work. Us-

ing this method entails specic requirements or notiying the song owner

and stringent requirements or accounting. And you will still pay the ull

statutory mechanical royalty rate. It is not recommended that you try this

method. The best and easiest way to get a mechanical license is rom the

songwriter or the publisher directly.


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synchronization licenses

We hope thats clear, but were not quite

done. Now, lets say you want to make a vid-

eo o your recording o Yesterday. Youll

need another license. This license is calleda synchronization license. This synch li-

cense gives you the right to synchronize the

composition (song) with visual images. The

synch license also contains the same right

as a mechanical license; the right to make copies. But the synch license is

not a substitute or a mechanical license. The only reproductions or cop-

ies you can make with a synch license are copies o your video containing

the composition. And, depending on how you want to use the video,

you may be restricted as to how many copies you can make. For instance,

i you want only to have your video broadcast on TV, the internet,

cell phones, etc., you may be restricted to making copies or just that

purpose. But i you also want to sell your video over iTunes or anywhere

else, you must have that right specied in the license. A synchronization

license is a lot more fuid and fexible than a mechanical license, so when

you get one, be sure you know what you want to do with the video andmake sure you ask or those rights to be included in the license.

You get a synch license the same way you get a mechanical license. You

must contact the publisher or songwriter. There is no set royalty rate or

a synch license. It is all negotiable between you and the songwriter or

publisher. You can negotiate to pay a one time up-ront ee or pay a roy-

alty. The royalty rate will be the amount agreed upon between you andthe publisher or the sale o each copy. In some cases, you may have to

pay both an up-ront ee and a royalty, or an advance against uture royal-

ties and subsequent royalties once the advance is paid o. It all depends

on your negotiations with the publisher.

The mechanical right, the synchronization right; these, along with others,


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like the reprinting o lyrics, are called publishing rights. This is music

publishing.

your friend, the harry fox agency

A word about The Harry Fox Agency. The Harry Fox Agency is a giant

agency that also administers music publishing rights, though they do notissue synch licenses nor do they grant permission to reprint lyrics. Just

like music publishers act on behal o songwriters, The Harry Fox Agency

acts on behal o songwriters and publishers too. In many cases, they will

be the source you will go to or a mechanical license.

so who owns the songs?

At this point you are probably asking yoursel : How do I nd the owner

or publisher o a song? Just about every song in existence is registered

with either ASCAP, BMI or SESAC. ASCAP, BMI and SESAC all have

web sites that you can search to nd the owner or publisher o a song.

Remember, there are many songs with the same title, so be sure you are

identiying the right song. I you know who wrote the song, it will make

your search a lot easier. Once you have ound the right song title and

writer, the inormation regarding the owner or publisher will be there

alongside it. Another good site that will help you track down the admin-istrator o a song is the Harry Fox Agency web site called SongFile. By

visiting these web sites and doing a little detective work, you will, in most

every case, nd out who you must

contact in order to get a license.

The license will be very specic

about who to pay, how oten

you must pay and, o course, theamount to be paid. Good Luck.


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nine inch nails: ghosts i - iv

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roger odonnell of the cure

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Go to TuneCore.com.


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