Your new speed metal version of “Purple Haze” is about to be released. Of course, it will be available on your Nimbit® store, and it’s going to make you rich and famous. You suspect you should get the rights to use the song. But you’re not rich yet, and Jimi Hendrix is dead, so why do you need a license?
True, Hendrix is history, but that doesn’t mean his music is in the public domain. (“Public domain” means the work is not copyrighted, so it can be freely used without a license.) Copyright law has changed several times in the past 40 years, but the bottom line is, some person or company still owns the rights to “Purple Haze.” In fact, there could be more than one copyright owner.
Even though your derivative version is very different from the original, it’s still “Purple Haze,” and you still need to pay for the license to distribute it. If you used samples from the original, you need to license those separately.
If you don’t, you could be in a heap of trouble.
The good news is, doing the right thing does not have to be difficult or expensive—at least, not in the U.S. and most Western countries. We’ll explain the basics that you need to know to get the U.S. copyright licenses in order to sell recordings of cover tunes that are not in the public domain.
Note that we’re not getting into all the gory details of copyright law here; entire books have been written on that subject. Nor will we discuss the moral issues involved. We won’t get into international licensing here; that varies widely depending on the country and would require a separate article. However, we provide links for this information and much more in the section “Where to learn more about copyright.”
What is Copyright?
In a nutshell, copyright is a set of exclusive rights that the law gives to owners of creative works. Copyright owners may have the rights to distribute, reproduce, adapt, publicly perform, and publicly display the work, and these can involve separate licenses.
A composition is separate from the recording of the composition; to distribute your own recording of “Purple Haze,” via download or physical media, you need a mechanical license.
Note that this license doesn’t let you use samples from “Purple Haze”; for that, you need to license a separate Master Use Right from whoever owns the copyright of the sound recording. Using lyrics from a composition is also a separate issue. (Live performance of a work requires yet another license but usually venues get a blanket license to cover that, so it’s not the artist’s problem.) All of those are beyond the scope of this article. We’re just talking about mechanical rights required to sell recordings of a composition to which someone else owns the rights.
Note that copyright law varies in different countries, and some countries recognize other countries’ copyrights while others don’t. Owning a license to use a song in the U.S. does not necessarily give you rights in other countries; you have to find out where your U.S. copyright is recognized and purchase rights separately for other countries.
Fox Hunting: The DIY Approach
There are two main ways to obtain song licenses: working directly with the rights owners (the do-it-yourself method) or paying a service to handle the whole thing.
Many U.S. publishers use the Harry Fox Agency (HFA) to manage their mechanical licenses and payments. This simplifies matters for the copyright holders, and it also simplifies matters for you because you can buy all the U.S. licenses you need from one agency, assuming the copyright holders use HFA’s services. Most do. HFA also contracts with a number of foreign agencies for collecting foreign mechanical royalties.
Note that Harry Fox Agency only handles licenses for records manufactured and distributed in the USA. Also, licenses for reprinting lyrics (on liner notes, for instance) are a separate issue and are not handled by HFA.
For International rights, you have to contact the mechanical rights society in each country, or contact the song’s publisher directly.
The HFA Songfile online service enables you to search for the HFA Song Code identifier and pay for up to 2,500 U.S. download licenses of songs controlled by Harry Fox Agency. If you need more licenses, you can download the appropriate form from Songfile.
Simple searches for HFA Song Codes are free and don’t require a login. Search by the songwriter last name, not the artist; in the case of “Purple Haze,” of course, Jimi Hendrix is both the songwriter and artist. A search for “Purple Haze” returns HFA Song Code P84800.
A demo of the licensing tool is available at www.harryfox.com/public/Songfile_Demo_v4.html.
When buying a license for a cover song, you first choose the type of license: physical product (CD, DVD, cassette, Vinyl LP), permanent digital download (PDD), ringtone (no more than 60 seconds), or interactive streaming. To order multiple types of licenses, place a separate order for each type of product you want to distribute.
Once in Songfile, you enter the release info: release date, play time for your version, and name of band/artist. If you do two versions of “Purple Haze” (say, the speed metal version and a punk version), you have to add the song twice and differentiate between them in the version comments. Then you enter your (licensee) info and the credit-card payment info.
The royalty rate and processing fees vary but a tool in Songfile tells you how they’re calculated.
With that done, you get a sample license with the terms of use, which you have to accept. Then you approve payment, and you’ll see a confirmation page (be sure to save it) and also will get a confirmation email stating you have purchased the licenses.
You can then log into your Songfile account and click on “View My Licenses” to save or print your licenses.
You’re legal in the USA—at least, as far as Harry Fox Agency and its copyright holders are concerned!
Let Someone Else Do It
Another way to get the licenses you need is to pay a service that handles everything for you. This can offers the simplest way to obtain the mechanical licenses required for selling and distributing music legally, including physical media (CDs, DVDs, etc.), permanent digital downloads (PDDs), interactive streaming, and ringtones.
Forget it. What Can They Do, Sue Me?
You bet; if you distribute that cover song without obtaining the licenses, the copyright owners can sue—and some of them will do it in a heartbeat.
Let's assume you aren’t part of some piracy conspiracy, you just “forgot” to obtain licenses for the songs you covered and distributed. We’re not talking about a criminal case but you can still get in more legal trouble than you may imagine.
If you distribute via a service like Nimbit®, the service will receive a Take Down notice. With Nimbit, you are notified and given seven days to respond with proof that you have the proper license. If you don’t respond within seven days, your song is taken offline. Nimbit and similar services have no way to know that you didn’t buy the licenses when you uploaded, and as long as they act promptly when notified, they’re off the hook.
However, you might not be so lucky. The copyright owners could come after you in court. It’s not common—but it happens.
Just Do It
Even if you don’t care about respecting other musicians’ copyrights and don’t care if someone rips off your compositions, the practical consequences of getting caught ought to be incentive enough to license the songs you want to use. Besides, if you plan to stick around awhile in the music business, it’s more than worth your time and money to handle your business the right way from the start. It’s not hard to get the proper licenses to sell a cover song, and it’s not prohibitively expensive. Virtually any self-respecting professional musician will tell you to just do it.
By the way, when you do publish that killer (licensed) speed metal version of “Purple Haze” on your Nimbit store, please let us know!