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How to Legally Sell Recordings of a Cover Song

Hendrix is dead but "Purple Haze" is not in the public domain. (Creative Commons: Licentie afbeeldingen Beeld en Geluidwiki archive)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.

Harry Fox Agency's SongfileĀ® demoWhen 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!

In the Limelight: Let Someone Else Do It

Another way to get the licenses you need is to pay a service that handles everything for you. The best known such service is Limelight.

Limelight is an online tool that 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.

Using Limelight, artists can clear any cover song and ensure that 100% of royalties due are paid to publishers and songwriters. Limelight obtains the licenses with all copyright holders and handles royalty reporting and payment.

Five Reasons to Use Limelight:

  • Allows you to be copyright compliant in a few simple steps
  • Licenses never expire
  • Volume discounts are available
  • Customer support via chat, email, social networks, and phone
  • Musicians and bands from over 79 countries and all 50 U.S. states are using Limelight.

Using Limelight is simple. You fill in the basic fields about the songs you want to license; choose the format, or “configuration”: physical, PDD, interactive streaming, and ringtone; specify the number of copies you anticipate in each format; and pay via PayPal. Unlike licensing through Harry Fox Agency, you can get the licenses for all configurations in one form. (Each requires a separate license but you only fill out the form once.)

Limelight also will research the songwriter and publisher information for you; you just need to know the original or prior recording artist.

Limelight verifies the proper U.S. copyright owners, takes care of the licensing, handles royalty accounting and payment, and sends you an electronic Notification of License. Your fee covers all royalties to U.S. copyright owners, plus Limelight’s service fee.

Limelight adds a maximum $15/license service fee (for one to three licenses); the fee is discounted if you buy a greater number of licenses. If you have sold the quantity of licenses you initially purchased, you can rebuy configurations (distribution formats) at a 50% discount.

https://www.songclearance.com/pricing/

Detailed information about royalty rates and fees is supplied on Limelight’s Web site.

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.

If you are sued for copyright infringement, a lot of things could happen, all of them bad. Note we said “could happen”; we’re not saying any or all of this will happen.

For starters, the plaintiffs (the people who are suing you) might be able to get a court injunction, which is an order (temporary or permanent) that forces you to do or stop doing something—in this case, stop distributing the song that violates their copyright. If you keep distributing the work in violation of the injunction, you could be fined or even, potentially, imprisoned. Of course, you’re not stupid enough to ignore a court order.

The court could issue an impoundment order, which means all copies (if the music is on physical media) could be seized by federal marshals. Worse, you could also lose your recording equipment, including computers, blank media, packaging materials, and so on. Ouch!

So even if you distribute downloads only, you could still lose big time. If you’re found guilty, the infringing goods could be ordered destroyed, sold, or surrendered to the copyright holder.

You could end up paying the copyright holder all of your profits from your infringement—plus actual damages, if the copyright owner can prove how much money they’ve lost because of your infringement. Alternatively, you could be hit for “statutory” damages; this is intended to compensate the copyright holder if, for instance, the amount of actual damages cannot be proven or is so small that if that were the only compensation, the plaintiff would not receive enough to be worth protecting their rights. The amount varies depending on a number of factors but if you continue to infringe after being warned or don’t cooperate with the legal process or are a repeat offender, you could get hit hard.

On top of all that, you might have to pay the plaintiff’s attorney fees and court costs, which can be quite expensive. So you might get hit for a few hundred bucks for statutory damages and still end up paying thousands.

So even if you only sold ten unlicensed copies of “Purple Haze,” it could cost you a bundle. Scared straight yet? You should be.

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!

U.S. Copyright Information on the Web

Here are some links where you can get more information about copyright laws in general and more specifically as they apply to music.

The Harry Fox Agency’s Web site has quite a bit of good information about copyrights, as does the Limelight site.

New Hampshire-based law firm Gallagher, Callahan & Gartrell offers an article on “Copyright Basics for Musicians.”

The Web site Public Knowledge offers a Copyright Tutorial for Musicians, funded by The New York State Music Fund.

Legal Language Services, which provides law firms and other legal professionals with translation and assorted legal support services, offers the article 7 Things Musicians Should Know About Copyright Law.

A Web search will find many more such articles.

If you need the songwriter/publisher information to set up your release, check the following sites:

All Music Guide

www.allmusic.com

ASCAP

www.ascap.com/

BMI

www.bmi.com

Google

www.google.com (search for songwriter)

PD Info

www.pdinfo.com (determine if a song is in the public domain)

SESAC

www.sesac.com

Books on Music Copyright

Several good books about copyright, protecting your own music, and other legal issues for musicians are available at Amazon.com and elsewhere. This is just a short list to get you started; there are many more.

TITLE

AUTHOR

PUBLICATION DATE

PUBLISHER

Moser on Music Copyright

David Moser

2006

Cengage Learning

Hey, That’s My Music!

Brooke Wentz

2007

Hal Leonard Books

Musician’s Legal Companion

Michael Aczon

2008

Hal Leonard Books

The Musician's Guide to Licensing Music

Darren Wilsey and Daylle Deanna Schwartz

2010

Billboard Books

By the Book

Rob Monath

2006

Hinshaw Music

International Copyright

The books we’ve on international copyright at Amazon.com are very (+) expensive, and we haven’t reviewed them. You can find search results here.

You can, however, get a good bit of information on the Web.

The University of Washington has a Web site called UW©opyrightConnection, which offers the article International Copyright Law.

RightsDirect is an Amsterdam-based company that’s mostly focused on print copyright, such as newspapers, magazines, and books but you can get a good overview of international copyright law from its free article International Copyright Basics.