Sound Advice

Your inside source to the world of entertainment law

with Peter Vaughn Shaver, Esq.
pvshaver@hotmail.com

Dear Sound Advice:
I am doing a cover of a Bob Dylan song in my live set and want to record my version for an upcoming CD. Can I do this without getting permission?
-Tangled up in Bob

Dear Bother:

Dear Tangled:

The answer is yes; you are welcome to record and sell cover version recordings of compositions belonging to Dylan or anyone else. Many artists have recorded Dylan’s songs, most notably Jimi Hendrix, whose cover version of “All Along the Watchtower” is probably better known than Dylan’s original version.

As you may remember from my answer to last month’s question on copyrights, there are actually two types of copyrights that recording artists need to be aware of: song compositions and the sound recordings of the compositions. In this case, you would be using Bob’s composition to make your own sound recording. You would then own the rights to your sound recording while Bob would retain the rights to his composition. Interestingly, if your cover version generates airplay or other commercial play, Bob, as the songwriter, and his publishing company would get paid by his performing rights organization (SESAC) , not you.

However, your ability to use Dylan’s composition does not come without a price. Since you are using his protected “property” to create your recording, you will have to pay the owner or administrator of the composition copyright for the privilege, typically this would be a publishing company. Essentially, you need to obtain a license to use Bob’s work for your own commercial purposes. This is commonly called a mechanical license. The “mechanical” part refers to the act of mechanically reproducing the composition into physical sound recording formats such as CDs, or vinyl records. The only time you don’t need to obtain a mechanical license is if the composition is in the public domain - either the copyright has expired (applicable to songs written before 1923) or the copyright has lapsed for another reason.

You can obtain mechanical licenses in a variety of ways. The most basic method is to contact the publisher of the song and negotiate a deal. However, there is no guarantee that the company will respond to your inquiry or that they will grant you a mechanical license. Dealing directly with individual publishers can be a time-consuming and frustrating process.

Luckily, you can also obtain mechanical licenses by contacting the Harry Fox Agency in New York (“HFA”). HFA has contractual arrangements with thousands of publishing companies that allow HFA to execute mechanical licenses for the songs owned or controlled by the publishing companies. HFA does not cover every artist or publishing company, and if they do not, you will have to deal directly with the publishing company itself as described above. In exchange for a small fee, HFA takes care of all the details of licensing compositions for cover recordings. This is the fastest, most convenient method of obtaining rights to record a cover version. Typically, the entire HFA license fee is paid up front.

Suppose, Bob, his publishing company, or HFA objects to your proposal to record a Dylan song in a kazoo orchestra style. Too freakin’ bad for Bob! Unlike the more direct control he might have over uses of his sound recordings for commercials or film use, Bob cannot prevent other artists from covering his compositions in any style imaginable, as long as they pay for the right to do so. This third method of obtaining a mechanical license without obtaining permission is called a compulsory (mechanical) license.

Compulsory licensing is complicated and the terms are non-negotiable. To start, you would need to file an intention to obtain a compulsory mechanical license with the federal Copyright Office. There are three other requirements that must be met in order to properly obtain a compulsory license: 1. The composition must be a “non-dramatic musical work.” So you cannot record cover versions of opera music, most show tunes, film scores or soundtracks under this option; 2. The original recording must have been commercially released at some point; and 3. Compulsory licenses are only available to create sound recordings only and do not entitle you to record the composition for use in videos, films or video games. You would need to obtain additional permission from the publishing company for use of your sound recording in other media. Other restrictions also apply: You also cannot change the lyrics or the basic melody of the original song, although you can arrange the composition to fit your performance style.

In addition to the above restrictions for obtaining compulsory licenses, you must pay what are called statutory royalties. Statutory royalties were established by Congress and are currently $0.08 (eight cents) per song or $0.0155 per minute of recording time of your version, whichever is greater. Starting January 1, 2004, these rates will rise to $0.085 per song or $0.0165 per minute. The statutory rates go up every two years and are also typically used in determining the rates for HFA licenses. Payments are made directly to the publisher of the song and you will have to send monthly accounts to the Publisher (through the Copyright Office) for the number of recordings distributed. Due to the number of restrictions, compulsory mechanical licensing is not widely used.

For example, if you only record one Dylan cover track for your release, you would pay his publishing company eight cents for each copy you intend to distribute or sell in any recorded format. For example, if you press 500 CDs then Bob’s publisher should get a check for $40.00. If you recorded a tribute album of ten Dylan songs, you would then be paying his publishing company $400.00 for the same 500 CDs. You do the math. Covering other people’s songs can get expensive. If you press more copies later, you will have to pay again. Generally, you should credit the songwriter, their publishing company or copyright holder of the composition, and their performing rights organization (ASCAP, BMI or SESAC) on your recording credits.

For more information on compulsory licenses, check out the federal Copyright Office website at loc.gov, or for general copyright info., loc.gov/copyright.

The bottom line: Cover versions are always possible, if you take certain steps and make proper payment for the right to do so. This article also illustrates the concept that, whenever possible, songwriters should not give up control of their publishing rights in their compositions as they can be an important source of income if covered by others.

Send your legal questions to pvshaver@hotmail.com, with “SOUND ADVICE” as the subject.

Disclaimer: The advice and opinions offered in this column are meant to be educational only and should not be relied upon as legal advice. Every situation is different and you are cautioned to seek advice from qualified counsel regarding the specific facts of your matter. Neither the attorney nor Music Liberation Project accepts any responsibility for any reader's reliance on the contents of this article.