Question: Mechanical Royalties when recording someone elses song

[tluke]

I understand you need to pay the current statutory rate for each song sold or downloaded, but how do you find them to do this? I found this at the US copyright site:

WebVoyage

The author is Burt Bacharach. I can find Burt of course, but it doesn't say, click here to send Burt his money. Thank you for any replies.

[narcoman]

you can't release the song without contacting who controls his collections. So ASCAP or MCPS etc etc .... If it's in the UK you'd contact MCPS and inform them of the version. They can't stop you releasing the version once you have informed them - then it's up to them. If you are using a download system which doesn't have this info - then it is an illegal download agency (eg MP3.com). YOu should have to fill all this in online. If you're using something like CD baby then they don't have this facility and you should not release cover versions without explicit permission.

Basically the download money should never come to you - if it DOES someone has filled in the form incorrectly OR the site is an illegal one.

[idylldon]

Try here:

Harry Fox Agency HFA

Cheers,
--
Don

[Steffmo]

Most well known songs are handles by Harry Fox. You can do the whole thing on their website.

Under 500 copies is a free license. The first 1000 is about 130.00. Then is comes down to about .10 per.

[tluke]

Thanks so much for the info on HFA.

Thank you Narcoman for your post. I wonder why this info seems to be at odds with yours:

How do I record someone else's song? - ArtistshouseMusic

[narcoman]

it's not at odds at all. You CAN do a cover version without getting permission - but you HAVE to lodged with the appropriate royalty parties and you HAVE to tell the publisher you're doing it - you do this through a compulsory license. You are NOT free just to do the version and put it out....you have to tell people what you are doing...... Be warned though - deviate from the original and you will get a hefty follow up.

I-tunes and aggregators don't pay you the publishing side of the money. If you release a CD you have ot pay in advance for the license. If it's online it's paid at source.

[jomo1234]

Chances are that the songwriter is affiliated w/ ASCAP or BMI (or less likely w/ SESAC). If you go to their websites you can easily look up the song/writer to find out who controls and/or administers the publishing. That's the easiest way.

[tluke]

Originally Posted by narcoman

it's not at odds at all. You CAN do a cover version without getting permission - but you HAVE to lodged with the appropriate royalty parties and you HAVE to tell the publisher you're doing it - you do this through a compulsory license. You are NOT free just to do the version and put it out....you have to tell people what you are doing...... Be warned though - deviate from the original and you will get a hefty follow up.

I-tunes and aggregators don't pay you the publishing side of the money. If you release a CD you have ot pay in advance for the license. If it's online it's paid at source.

narcoman, thank you again for sharing this information. Tell me please, if released on line you say it's paid at source. Can you explain that? You mean paid based on the number of downloads, rather than in advance? Thank you.

[narcoman]

Originally Posted by tluke

narcoman, thank you again for sharing this information. Tell me please, if released on line you say it's paid at source. Can you explain that? You mean paid based on the number of downloads, rather than in advance? Thank you.

this may be territory based i guess - but in the UK, I-tunes/aggregator pays the MCPS direct.

[buscemi]

Originally Posted by jomo1234

Chances are that the songwriter is affiliated w/ ASCAP or BMI (or less likely w/ SESAC). If you go to their websites you can easily look up the song/writer to find out who controls and/or administers the publishing. That's the easiest way.

Harry Fox as mentioned above is what I find to be the easiest way. One stop shopping (unless you are going to negotiate a different rate directly with the publisher of course but even that's not terribly hard).

[rack gear]

What is a Compulsory Mechanical License and the Statutory Rate?

If a composition has already been commercially recorded, and you wish to record and distribute that composition yourself (and you are not the original songwriter), you can obtain a compulsory mechanical license. This is outlined in section 115 of the 1976 United States Copyright Act. The Harry Fox Agency mechanical license is a written variation of the compulsory license. The royalty rate (what gets paid to the music publisher) is set by law, and is known as the "statutory rate." For information on the current statutory rates, click here.

Current Rate
Legal Fixation: Compulsory Mechanical Licenses and Accounting Under the Copyright Act (part 1)
www.harryfox.com/docs/m-license_laccountapp.pdf

§ 115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords50

In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section.

(a) Availability and Scope of Compulsory License. —

(1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work. A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery. A person may not obtain a compulsory license for use of the work in the making of phonorecords duplicating a sound recording fixed by another, unless:

(i) such sound recording was fixed lawfully; and

(ii) the making of the phonorecords was authorized by the owner of copyright in the sound recording or, if the sound recording was fixed before February 15, 1972, by any person who fixed the sound recording pursuant to an express license from the owner of the copyright in the musical work or pursuant to a valid compulsory license for use of such work in a sound recording.

(2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

(b) Notice of Intention to Obtain Compulsory License. —

(1) Any person who wishes to obtain a compulsory license under this section shall, before or within thirty days after making, and before distributing any phonorecords of the work, serve notice of intention to do so on the copyright owner. If the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file the notice of intention in the Copyright Office. The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

(2) Failure to serve or file the notice required by clause (1) forecloses the possibility of a compulsory license and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509.

(c) Royalty Payable under Compulsory License.51 —

(1) To be entitled to receive royalties under a compulsory license, the copyright owner must be identified in the registration or other public records of the Copyright Office. The owner is entitled to royalties for phonorecords made and distributed after being so identified, but is not entitled to recover for any phonorecords previously made and distributed.

(2) Except as provided by clause (1), the royalty under a compulsory license shall be payable for every phonorecord made and distributed in accordance with the license. For this purpose, and other than as provided in paragraph (3), a phonorecord is considered “distributed” if the person exercising the compulsory license has voluntarily and permanently parted with its possession. With respect to each work embodied in the phonorecord, the royalty shall be either two and three-fourths cents, or one-half of one cent per minute of playing time or fraction thereof, whichever amount is larger.

(3)(A) A compulsory license under this section includes the right of the compulsory licensee to distribute or authorize the distribution of a phonorecord of a nondramatic musical work by means of a digital transmission which constitutes a digital phonorecord delivery, regardless of whether the digital transmission is also a public performance of the sound recording under section 106(6) of this title or of any nondramatic musical work embodied therein under section 106(4) of this title. For every digital phonorecord delivery by or under the authority of the compulsory licensee —

(i) on or before December 31, 1997, the royalty payable by the compulsory licensee shall be the royalty prescribed under paragraph (2) and chapter 8 of this title; and

(ii) on or after January 1, 1998, the royalty payable by the compulsory licensee shall be the royalty prescribed under subparagraphs (B) through (E) and chapter 8 of this title.

(B) Notwithstanding any provision of the antitrust laws, any copyright owners of nondramatic musical works and any persons entitled to obtain a compulsory license under subsection (a)(1) may negotiate and agree upon the terms and rates of royalty payments this section and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay or receive such royalty payments. Such authority to negotiate the terms and rates of royalty payments includes, but is not limited to, the authority to negotiate the year during which the royalty rates prescribed under this subparagraph and subparagraphs (C) through (E) and chapter 8 of this title shall next be determined.

(C) Proceedings under chapter 8 shall determine reasonable rates and terms of royalty payments for the activities specified by this section during the period beginning with the effective date of such rates and terms, but not earlier than January 1 of the second year following the year in which the petition requesting the proceeding is filed, and ending on the effective date of successor rates and terms, or such other period as the parties may agree. Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. Any copyright owners of nondramatic musical works and any persons entitled to obtain a compulsory license under subsection (a)(1) may submit to the Copyright Royalty Judges licenses covering such activities. The parties to each proceeding shall bear their own costs.

(D) The schedule of reasonable rates and terms determined by the Copyright Royalty Judges shall, subject to subparagraph (E), be binding on all copyright owners of nondramatic musical works and persons entitled to obtain a compulsory license under subsection (a)(1) during the period specified in subparagraph (C), such other period as may be determined pursuant to subparagraphs (B) and (C), or such other period as the parties may agree. Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. In addition to the objectives set forth in section 801(b)(1), in establishing such rates and terms, the Copyright Royalty Judges may consider rates and terms under voluntary license agreements described in subparagraphs (B) and (C). The royalty rates payable for a compulsory license for a digital phonorecord delivery under this section shall be established de novo and no precedential effect shall be given to the amount of the royalty payable by a compulsory licensee for digital phonorecord deliveries on or before December 31, 1997. The Copyright Royalty Judges shall also establish requirements by which copyright owners may receive reasonable notice of the use of their works under this section, and under which records of such use shall be kept and made available by persons making digital phonorecord deliveries.

(E)(i) License agreements voluntarily negotiated at any time between one or more copyright owners of nondramatic musical works and one or more persons entitled to obtain a compulsory license under subsection (a)(1) shall be given effect in lieu of any determination by the Librarian of Congress and Copyright Royalty Judges. Subject to clause (ii), the royalty rates determined pursuant to subparagraph (C) and (D) shall be given effect as to digital phonorecord deliveries in lieu of any contrary royalty rates specified in a contract pursuant to which a recording artist who is the author of a nondramatic musical work grants a license under that person's exclusive rights in the musical work under paragraphs (1) and (3) of section 106 or commits another person to grant a license in that musical work under paragraphs (1) and (3) of section 106, to a person desiring to fix in a tangible medium of expression a sound recording embodying the musical work.

(ii) The second sentence of clause (i) shall not apply to —

(I) a contract entered into on or before June 22, 1995 and not modified thereafter for the purpose of reducing the royalty rates determined pursuant to subparagraph (C) and (D) or of increasing the number of musical works within the scope of the contract covered by the reduced rates, except if a contract entered into on or before June 22, 1995, is modified thereafter for the purpose of increasing the number of musical works within the scope of the contract, any contrary royalty rates specified in the contract shall be given effect in lieu of royalty rates determined pursuant to subparagraph (C) and (D) for the number of musical works within the scope of the contract as of June 22, 1995; and

(II) a contract entered into after the date that the sound recording is fixed in a tangible medium of expression substantially in a form intended for commercial release, if at the time the contract is entered into, the recording artist retains the right to grant licenses as to the musical work under paragraphs (1) and (3) of section 106.

(F) Except as provided in section 1002(e) of this title, a digital phonorecord delivery licensed under this paragraph shall be accompanied by the information encoded in the sound recording, if any, by or under the authority of the copyright owner of that sound recording, that identifies the title of the sound recording, the featured recording artist who performs on the sound recording, and related information, including information concerning the underlying musical work and its writer.

(G)(i) A digital phonorecord delivery of a sound recording is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and section 509, unless —

(I) the digital phonorecord delivery has been authorized by the copyright owner of the sound recording; and

(II) the owner of the copyright in the sound recording or the entity making the digital phonorecord delivery has obtained a compulsory license under this section or has otherwise been authorized by the copyright owner of the musical work to distribute or authorize the distribution, by means of a digital phonorecord delivery, of each musical work embodied in the sound recording.

(ii) Any cause of action under this subparagraph shall be in addition to those available to the owner of the copyright in the nondramatic musical work under subsection (c)(6) and section 106(4) and the owner of the copyright in the sound recording under section 106(6).

(H) The liability of the copyright owner of a sound recording for infringement of the copyright in a nondramatic musical work embodied in the sound recording shall be determined in accordance with applicable law, except that the owner of a copyright in a sound recording shall not be liable for a digital phonorecord delivery by a third party if the owner of the copyright in the sound recording does not license the distribution of a phonorecord of the nondramatic musical work.

(I) Nothing in section 1008 shall be construed to prevent the exercise of the rights and remedies allowed by this paragraph, paragraph (6), and chapter 5 in the event of a digital phonorecord delivery, except that no action alleging infringement of copyright may be brought under this title against a manufacturer, importer or distributor of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or against a consumer, based on the actions described in such section.

(J) Nothing in this section annuls or limits

(i) the exclusive right to publicly perform a sound recording or the musical work embodied therein, including by means of a digital transmission, under sections 106(4) and 106(6), (ii) except for compulsory licensing under the conditions specified by this section, the exclusive rights to reproduce and distribute the sound recording and the musical work embodied therein under sections 106(1) and 106(3), including by means of a digital phonorecord delivery, or (iii) any other rights under any other provision of section 106, or remedies available under this title, as such rights or remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995.

(K) The provisions of this section concerning digital phonorecord deliveries shall not apply to any exempt transmissions or retransmissions under section 114(d)(1). The exemptions created in section 114(d)(1) do not expand or reduce the rights of copyright owners under section 106(1) through (5) with respect to such transmissions and retransmissions.

(4) A compulsory license under this section includes the right of the maker of a phonorecord of a nondramatic musical work under subsection (a)(1) to distribute or authorize distribution of such phonorecord by rental, lease, or lending (or by acts or practices in the nature of rental, lease, or lending). In addition to any royalty payable under clause (2) and chapter 8 of this title, a royalty shall be payable by the compulsory licensee for every act of distribution of a phonorecord by or in the nature of rental, lease, or lending, by or under the authority of the compulsory licensee. With respect to each nondramatic musical work embodied in the phonorecord, the royalty shall be a proportion of the revenue received by the compulsory licensee from every such act of distribution of the phonorecord under this clause equal to the proportion of the revenue received by the compulsory licensee from distribution of the phonorecord under clause (2) that is payable by a compulsory licensee under that clause and under chapter 8. The Register of Copyrights shall issue regulations to carry out the purpose of this clause.

(5) Royalty payments shall be made on or before the twentieth day of each month and shall include all royalties for the month next preceding. Each monthly payment shall be made under oath and shall comply with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall also prescribe regulations under which detailed cumulative annual statements of account, certified by a certified public accountant, shall be filed for every compulsory license under this section. The regulations covering both the monthly and the annual statements of account shall prescribe the form, content, and manner of certification with respect to the number of records made and the number of records distributed.

(6) If the copyright owner does not receive the monthly payment and the monthly and annual statements of account when due, the owner may give written notice to the licensee that, unless the default is remedied within thirty days from the date of the notice, the compulsory license will be automatically terminated. Such termination renders either the making or the distribution, or both, of all phonorecords for which the royalty has not been paid, actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509.

(d) Definition. — As used in this section, the following term has the following meaning: A “digital phonorecord delivery” is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible.

[wildplum]

much missinformation here.

"Under 500 copies is a free license. "
Not so! you must pay for every copy you "distribute" (sell, give away, DDL, whatever- except in very special circumstances). go to HRA's online licensing site and try licensing 499 copies and see how this all works (you can back out before submitting final payment).

ASCAP, etc, have nothing to do with recording licenses (i.e., mechanical). they work with performance rights. however the PROs (performance rights organization) are good sources for determining who owns or controls the copyright.

mechanical licenses only apply to previoulsy released material. non released material has no statuatory "right to record" associated with it. all such licensing is a matter of negociation.

all the above applies to the USA. i've never worked in europe.

when i license songs, i try to go through HFA. for a small fee, they make the process easy. but they don't handle all songs- and some they only handle part of the process (eg, they rep only one of the co-publishers). when HFA can not do the job, i try to find the publisher or songwriter (presumably, the copyright holder). BMI, etc, can usually be used to do this, but sometimes you have to get creative (not everyone is associated with a PRO). try contacting the songwriter directly, or contacting someone who has covered the song, search the internet, etc.

if i am doing a non-HFA song, (once i've found the right contect), i write them a letter, stating what i intend to do, offer to pay them the standard statutory rate for the first 1000 coopies up front (my usual run), and ask them to excuse me from the other reporting requirements of the US copyright law. alsways works. you can bypass all this by "simply" following the letter of the copyright law regarding mechanical licenses, but the reporting requirements are onerous.

my top suggestion: spend a few bucks and but a book with a title such as music law for musicians or everything the musican needs to know about music law (sorry don't off the top have a spefic title in mind, but most decently cover the topic of simply recording a cover song and how the licensing works).

[flober1970]

Very interesting, but...

...if u plan to make your version of a jazz standard and release it for free (like myspace), do you have to do anything ?

thanks

F

[narcoman]

Originally Posted by Randall

change a line or 2 and co-pub it listing yourself as a co-writer

you can't do that at all. That's a big no no and will land you in trouble. You need wrietesr and publishers permission to do changes.

[John Willett]

narcoman knows what he's talking about.

Whenever I release a CD I declare everything to the MCPS who then come back to me with the invoice.

Maximum is 6.25% of the dealer price of the CD - but may be less if some tracks are out of copyright (eg: some classical music where the composer died over 75 years ago).

[flober1970]

Originally Posted by flober1970

Very interesting, but...

...if u plan to make your version of a jazz standard and release it for free (like myspace), do you have to do anything ?

thanks

F

So in My case, what do I have to do, ask the publisher ?
Will I have to pay something ?

thanks for the reply.

F

[Dale Turner]

A couple years ago, I wrote up a fairly large article covering this topic, detailing all the junk involved with "properly" licensing tracks for a covers CD I did... It's kind of a long read, but covers everything involved, from my experience, anways. And there are tons of text links throughout, that will help you track down individual publishers, if you wish to "go direcet" and bypass Harry Fox (or if they don't offer that particular song's license and you HAVE to go direct.)

Basically, it covers 1) the Harry Fox route, 2) How to find the publisher for non-Harry Fox stuff, and 3) What to do if you can't find ANY info an the publisher.

The Cover Song Quagmire:
Three Ways to Obtain Mechanical Licenses,
for Legally Recording/Distributing Cover Versions on CD

http://www.cleverjoe.com/articles/mu...right_law.html

It's kind of told in "story" form too, which hopefully makes it less tedious. But I'd suggest you read the whole thing (well, from the 4th paragraph down, or so)--with Saturday morning coffee! I really tried hard to cover my arse (and the arses of any possible readers)! Hope it helps!

Dale

[midnightsun]

hmmmm..... it seems that to change an arrangement is a no no. What about situations where an artist uses someone else's creation as a sample for a loop or hook in a new song?

[narcoman]

Originally Posted by midnightsun

hmmmm..... it seems that to change an arrangement is a no no. What about situations where an artist uses someone else's creation as a sample for a loop or hook in a new song?

a sample will need publishing AND master clearance. If you just use the arrangement in a new song you'll need publishing permission (and likely the writer will get the final word).

[narcoman]

Originally Posted by flober1970

So in My case, what do I have to do, ask the publisher ?
Will I have to pay something ?

thanks for the reply.

F

If the jazz standard is in the public domain you don't have to do anything. If you cover a published and still covered arrangement of the jazz standard - you'll need to pay. You'll also need the compulsory license if it's been released.

[flober1970]

The arrangements are totally new...

where do i check if the songs are public domain ?

Thanks

F

[narcoman]

find out when they were written would be the first thing an then finding out when the author died. You can do checks on BMI and ACSAP - useful for finding out who owns what.... If there is no author - ie a traditional tune covered by everyone , then just make sure it's not a copyright arrangement - otherwise troooble !

[cohensghost]

What about using a single line from an artist's song, in an new song?

I ask because I wrote and recorded a new song, and as it moves into the outro, in the background, I used a line of lyrics from a classic Police song. I have looked around the internet and found nothing on this kind of usage anywhere.

[cohensghost]

Okay...no one has responded to my question, so I am feeling like a twat. I will try again.

I have heard other artists do this in the past, use a smattering of lyrics or prose, written by another artist within their own song, sometimes within the outro and sometimes scattered throughout their own lyrics.

In the outro of my band's new song All Is Lost, in the background we used a couple lines of lyrics from the Police song Every Little Thing She Does Is Magic. Click on the above link and have a listen and hear for yourselves.


The lyrics were intentionally blended into the strings, so it wasn't easy to make out.

I can remove the words, but it seemed fitting to add them. However, I cannot find anything regarding laws surrounding such use of lyrics, and am not going to officiially release the single until I can find out.