When Do I Need To Worry About Music Licensing?

Limelight
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Covering another artist or band’s material isn’t much of an issue when you perform it live. After all, most venues already pay annual fees to BMI and ASCAP for the rights to have live music played and to play music over their own PA system. What about covering someone else’s material in a recorded setting such as track on an album or a video on Youtube though? This is where it all starts to get a bit hairy since you could receive a takedown notice or even be sued. To eliminate those issues, you need to look at music licensing.

Mechanical Licenses

When an artist records an original tune, it creates two licensing points. One is the actual sound recording itself, and the other is the song itself which is what we are concerned with. A mechanical license is the permission from the song publisher (or rights holder) for you to record and distribute the song that they own the rights to. You may be getting this from the original songwriter, a relative of the songwriter, or just someone who bought the rights. You pay for a mechanical license based on distribution method, length of song, and expected number of copies prior to actually selling.

Sync Licenses

This is a license requirement that is getting overlooked regularly nowadays. A synchronization license is needed to “sync” the audio to some video. So if you decided to record a cover song and pay for the mechanical license, you will still need to get a sync license if you want to post a video using that audio. Obviously you can post the video without a license, but then you are taking a chance. After all, the more popular the video the more likely the right person will have it taken down.

How Does This Apply To Physical CDs?

When you decide to get CDs made (yes I know CDs are becoming old school but people still buy them), each one constitutes a unit for which you need to pay a licensing fee. Even if you’re not selling them, you are legally required to buy a license(s) to distribute them if you have any cover songs on them. Before you get afraid of how much this will cost, know that the current rate is 9.1 cents or 1.75 cents per minute of playing time, whichever is greater. So at the worst case, you’ll be paying 9.1 cents for each unit of each cover song.

How Does This Apply To Digital Copies?

Selling digital downloads of a cover song means you don’t have a physical copy to deal with but doesn’t exclude you from licensing fees. For digital downloads you have a DPD license (Digital Phonorecord Delivery) to purchase. This applies specifically to downloadable audio files delivered via the world wide web. Even though it has a special name and deals with intangible goods, a DPD license works the same way by you having to purchase ahead of time for X number of sales.

What About Streaming Video Plays?

When you decide to upload a video to ye olde Youtube, Vimeo, or other similar site, you are legally required to secure a sync license for that purpose as well as a mechanical license for the song itself. Of course, we all know that there are hundreds of thousands of cover song videos on Youtube alone that likely do not have any licensing purchased for them. So while you may be able to upload the video without licensing, it is only a matter of time until you get a takedown notice. If you are spending money on a quality video in order to promote your cover version, then you should spend the extra money to get the sync licensing. Then you don’t have to worry about it being taken down.

The Public Domain And What It Means

Copyrights don’t last forever. As a result, you get the public domain. Let’s take Michael Jackson for example. While he was alive he owned the copyrights for his songs. But once he died, who became owner(s) of the copyrights? Did they just go away? Well, this is where it gets more complicated. Depending on when a song was published affects when it will enter the public domain. Taking the song Thriller as an example, it was released at the end of 1983, which means basically the life of the author plus 70 years or 120 years from creation date. So when Michael Jackson passed away, his copyrights passed to the necessary family members. Since he died in 2009, the song will enter public domain in 2079 (2079 is sooner that 2103 which is 120 years from publication date).

Once a song is in the public domain, it is free to use. No one has to worry about securing rights to use it. Of course, there are always people looking to complicate things if there is money to be made. Take the “Happy Birthday” song for example. That is the one guarantee you will always have: if there is money being made everyone will want a piece of it.

Getting The License For A Song

To find out who is the publisher of a song, this is when you turn to either BMI or ASCAP. The publisher will be registered with one of the organizations, and therefore the song and that publisher’s information will be available. Once you have this information, you can then contact an agency about getting a mechanical license. The largest and longest running agency is the Harry Fox Agency. Fortunately, now there are equally viable other options, one of the best being LimeLight. If you are looking for a small sales volume, such as 5000 or less, then I recommend using LimeLight. It will be far easier and quicker dealing with them than the Harry Fox Agency.

Conclusion

Selling a copy of someone else’s material without getting permission is stealing plain and simple. You didn’t take the time to write the tune. You just did your own take on it or your own performance of it. So if you’re going to sell a cover tune, make sure you get the license first. After all, you wouldn’t someone profiting off of a song you wrote without you making at least something from it. Even if you are just producing CDs of a cover song you did and giving them away, that will still count as distribution so you should still get a license.

When it comes to people just uploading performance videos of cover songs on Youtube or Vimeo, I personally feel that is a different matter. Of course some artists, all the lawyers, and of course all the labels will disagree with me, but John Doe posting a video of him covering a song he likes does not threaten the original artists or associated businesses in any way. Until John Doe asks for money for the cover, he is doing nothing more than showcasing his own talent and his personal appreciation for the song he covered. Preventing people from doing this may do nothing more than anger fans and stifles new talent from being able to do more.

Bottom line is if you intend to sell the song cover you need to get a license. If you are posting a video of the song and linking to it on iTunes, Amazon, etc, then you should go ahead and get licensing for the video as well. To me, if you post a video of you playing a song by another artist and do not ask for payment in any form, then you shouldn’t worry about it. Even better is to take away their reason to complain and link to the original song on iTunes. Then if you still receive a complaint, that artist and/or label doesn’t need to be supported any way.

James Higgins (295 Posts)

Professional guitarist and instructor based in Alabama; performance, songwriting, and recording. Atlanta Institute of Music graduate. Part-time blogger.


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