Most a cappella groups perform songs written by other artists. These are called "covers". The Copyright Act gives you the right to record these “cover” songs by means of a compulsory license. Compulsory means you don’t need anyone’s permission. All you need to do is
give the right information and the right amount of money at the right time and place to the right person.
Keep in mind that this compulsory license won’t allow you to make or use videos, movies, audiovisual works, live performances, mash-ups, medleys, dramatic works, or even someone else’s sound recordings. Compulsory licenses are just for making your own sound recording of someone else’s composition.
What’s a Cover Song?
A cover song, for our purposes, is a nondramatic, non-public domain song written and published by someone else.
What Does Nondramatic Mean?
Songs that were created as part of musicals and plays are called “dramatic” and they are not covered by compulsory licensing. Thankfully, almost all pop, jazz, R&B and rock songs are considered nondramatic.
How Do You Know If a Song is In the Public Domain?
Here’s an easy article to help you get to the bottom of the most common public domain questions:
http://www.acappella101.com/home/public-domain
If you find that daunting, then you should just assume that any song published 1923 or later is not in the public domain. Songs published before 1923 are almost always in the public domain.
However, you should know that due to the many changes in the law over the last century, determining public domain status with certainty is a tricky matter usually handled by attorneys on a case-by-case basis. The current state of the law is that copyright lasts for the life of the last living co-author, plus 70 years.
How Do You Know If a Song is Published?
Published simply mean that copies of the music have been sold, leased or given away to the public. Public performance alone won’t constitute publishing. Only published songs are subject to compulsory licensing.
What About Arrangements?
There is no compulsory license for copyrighted arrangements. But many arrangements are not protected by copyright at all. The rule here is that you can freely use all but two kinds of arrangements: 1) copyrighted arrangements of public domain songs; and 2) copyrighted arrangements made with the permission of the copyright holder of the underlying composition.
In the first situation, an arrangement may be copyrighted even if the song being arranged is in the public domain. This only means that you aren’t free to copy that particular arrangement. The original words and melody of the song are still yours to do with as you wish. And all chords and chord progressions are in the public domain. Just make sure your arrangement is based on the original work and not the work of some other arranger and you’ll be fine.
In the second instance, if the arrangement was made with the permission of the copyright holder, then, in addition to paying the composer (who cannot deny permission), you have to also pay the arranger separately whatever they ask for. And the arranger can refuse permission if they wish. But if the arrangement was made without permission, (which is very often the case), then you do not need to ask permission or provide any payment.
What’s the Easiest Way To License a Cover Song?
The easiest way to license a cover song is through Limelight.com or through the Harry Fox Agency at Songfile.com or through easySongLicensing.com. Sign on. Select the songs. Pay the appropriate amount for the number of copies you will make (not the number you will sell). Get your licenses. All done!
What Kind of Licenses Should I Get?
That depends on whether you will sell physical or digital copies. You use the mechanical license for:
Physical Phonorecords (CDs, tapes)
And you use a digital license for:
Permanent Digital Downloads (like itunes and amazon)
Interactive Streaming (specific song plays on demand)
Ringtones (often a song snippet)
The cost for physical phonorecords and digital downloads is the same. The cost for the other categories varies.
What If We Want to Make a Video?
Videos require an entirely different license called a Sync or Synchronization License, which has not traditionally been sold by Limelight, Songfile or EasySongLicensing. You must usually contact the publisher directly for this license. (As of the writing of this article, The Harry Fox Agency is in the midst of negotiating and testing out a bulk system for YouTube licenses, so it's worth checking.)
What If The Song Isn’t Available Through Those Sites?
That should not happen. Limelight and EasySongLicensing claim that they can handle any licensing request, so they may be the best place to start.
They both do charge a fee of around $15-$20 above the cost of the license itself. But so does the Harry Fox Agency.
Fees are a particular frustration in small runs, but once you see how onerous a job doing this on your own can be, you may find that Limelight 's or others' fees are money well spent.
Can't I Do This Without These Middlemen and Their Fees?
Yes! All you need to do is give the right information and the right amount of money at the right time to the right person. The bad news is that this can be a time-consuming hassle. On the other hand, being sued for copyright infringement is much, much more time-consuming and expensive hassle.
What’s the Right Information?
If you get your compulsory license by contacting the copyright holder directly, without using Limelight, Songfile or EasySongLicensing, you must follow the instructions as laid out in the copyright act. The “Notice” included below includes everything you need. All you have to do is fill it out and make sure to send it to the right person along with the right amount of money at the right time.
What’s the Right Amount of Money to Pay?
If you ask nicely, or of you plan to make a lot of copies, some copyright owners will offer you the right to use their song for free or at a discount. Whatever you and any one or more of the copyright holders agrees to is all you need to pay. It's tough to get a response from many copyright holders.
If you don’t come to an agreement (either because they are unwilling to compromise or because they never answer you), then the amount you pay follows this simple formula: 9.1 cents per copy, or 1.75 cents per minute or fraction thereof of playing time, whichever is greater. (Remember to round up those fractions of a cent at the very end of your calculations.)
Note that the amount you owe to the copyright holder for using their composition is completely unrelated to the amount of money you charge the public to buy your sound recording. So even if you give your recording away for free, you still pay for each copy you made and/or each copy you allowed someone else to make (such as when they download a song from your website).
What’s the Right Time to Pay?
You must pay the correct person, either before you make the copies, or within 60 days of making the copies in order to have the right to a compulsory license. And if you don’t purchase your right through either Limelight, Songfile or EasySongLicensing, then you must provide a monthly statement with full payments to the copyright holder.
What Happens If The Notice or Payment is Late?
Often nothing happens. But that’s because many composers are nice people or don’t know their rights. If you miss the deadline, you do take a risk because your tardiness gives the copyright holders the right to refuse permission, or to charge you any amount that they choose.
Who Is the Right Person to Pay?
Any one of the “copyright owners” (ie composers) or their authorized agent who handles music publishing rights.
How Do You Find the Copyright Holder?
This is the trickiest part of the entire process. If you don’t license the song through either Limelight, Songfile or EasySongLicensing then you need to find the accurate name and address of the copyright holder. Though you may get this information from many sources, the only source you can legally rely on is a search of the records at the Copyright Office.
If the work was registered in 1978 or later, you can search the new online database of the Library of Congress ( www.copyright.gov/records)
Searching is free, but you’ll find that going through these records is a bit confusing.
You can also search for any work registered at any time, for free, in person at the Copyright Public Records Reading Room (LM-404) on the 4th floor of the James Madison Building of the Library of Congress in Washington DC. The 2011 hours are 8:30 am to 5pm, Monday through Friday, except Federal holidays.
If getting to DC is an issue, you can pay the bibliographer there a fee to do the search for you. The 2011 fee for location and retrieval of Copyright Office materials or records was $165 per hour with a two hour minimum. The fee for location and retrieval of electronic records (per quarter hour) (with a minimum of 1/2 hour) is $41.25. (That $15 dollar fee for using either Limelight, or EasySongLicensing is probably starting to look better now)You can contact the Library of Congress bibliographer here:
Library of Congress
Copyright Office–IRD
Records Research and Certification Section
101 Independence Avenue SE
Washington, DC 20559-6300
fax: (202) 252-3485
tel: (202) 707-6850
Can’t I Just Look on the Internet?
There’s a lot of accurate information on the net, particularly at ASCAP, BMI, SESAC and AllMusic. It’s free to search these sites, but, consider this warning from the Copyright Office:
“The Notice will not be considered properly served if ... not sent to the copyright owner or the agent of the copyright owner … or if the Notice is sent to an incorrect address.”
In other words, if you mail to the wrong person or to the right person at the wrong address, it’s as if you never mailed the required notice at all.
If the address or name is wrong, and you receive either a “no” or no answer, you cannot proceed. If you are fast approaching at your 60-day deadline, you could lose the ability to get a license at all.
And if you get a “yes” from someone who isn’t actually the correct person, and you pay them, and then the real copyright owner comes looking for payments from you, you could end up having to pay double! To get your money back, you would have to sue the first incorrect person for fraud.
Once I Find the Copyright Holder, What Do I Say?
Once you find the copyright holder, you want to serve a "Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords". This is what one looks like:
_______________________________________________________________________
Legal Name of Person/Entity Partner director etc seeking the Compulsory License
Full Address (do not use a PO box)
Date
Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords
To Whom It May Concern;
Our records show that you are a copyright holder or duly authorized agent of a copyright holder of the works listed herein. If you are not the copyright holder or a duly authorized agent, you must notify us immediately. Pursuant to Section 115(b) and Section 201.18 of title 17 of the United States Code, we write to you today to provide notice of our intention to obtain a compulsory license for making and distributing phonorecords of the works listed below. Please note our information: The full legal name of the person or entity intending to obtain the compulsory license; if a business then the name and title of the chief executive officer, managing partner, sole proprietor or other person similarly responsible for the management of such entity.
otherwise known as [all fictitious or assumed names used by such person or entity for making and distributing phonorecords]
telephone number,
full address (note: A post office box or similar designation will not be sufficient for this purpose except where it is the only address that can be used in that geographic location),
e-mail address, if available, of the person or entity intending to obtain the compulsory license,
Our fiscal year begins on [DATE your fiscal accounting begins –this is usually Jan 1]
We hereby notify you of our intent to obtain compulsory licenses for the following nondramatic musical works to be embodied in our phonorecords:
Song Title Author(s) Copyright Owner Type of Phono Date
We have made the following types of phonorecord configurations under this compulsory license:
single compact disks
long-playing compact disks
cassettes
cartridges
reel-to-reel tapes
digital phonorecords
The expected date of our initial distribution of phonorecords already made (if any) or expected to be made under the compulsory license is [date]
The name of the principal recording artist or group actually engaged or expected to be engaged in rendering the performances fixed on phonorecords already made (if any) or expected to be made under the compulsory license is [Name of Your Recording Artist].
The catalog number or numbers, and label name or names, used or expected to be used on phonorecords already made (if any) or expected to be made under the compulsory license is [information]
In the case of phonorecords already made (if any) under the compulsory license, the date or dates these were manufactured is [dates].
Pursuant to § 201.18 (b) we hereby request that you provide within two weeks of the receipt of this Notice of Intention, the name and address of the copyright owner or its agent upon whom we shall serve Statements of Account and the monthly royalty in accordance with §201.19(a)(4) If this Notice is signed by a duly authorized agent for the person or entity intending to obtain the compulsory license, the agent, by signing below affirms that he or she is authorized to execute the Notice of Intention on behalf of the person or entity intending to obtain the compulsory license.
Sincerely,
SIGNATURE
Print name
Title, Company/Organization
_______________________________________________
And here is one that's been filled out with fictional information:
The Happtones, Inc.
Large Music Inc.
Att: Licensing Division
123 Big City Way
NY, NY 11111
1-1-2011
Notice of Intention to Obtain a Compulsory License for Making and
Distributing Phonorecords
To Whom It May Concern;
Our records show that you are a copyright holder or duly authorized agent of a copyright holder of the works listed herein. If you are not the copyright holder or a duly authorized agent, you must notify us immediately. Pursuant to Section 115(b) and Section 201.18 of title 17 of the United States Code, we write to you today to provide notice of our intention to obtain a compulsory license for making and distributing phonorecords of the works listed below. Please note our information: The Happytones, Inc.
President, Jane Smith
The Happytones are otherwise known as the H-tones and/or H-tone Records.
Ph. 212-555-5555,
123 College Way Collegetown, NY 11111
Our fiscal year begins on January first.
We hereby notify you of our intent to obtain compulsory licenses for the following nondramatic musical works to be embodied in our phonorecords:
Song Title Author(s) Copyright Owner
Beat It Michael Jackson Mijac Music, Inc
We have made or intend to make the following number and types of phonorecord configurations under this compulsory license:
0 vinyl records
500 compact disks
0 cassettes
0 cartridges
0 reel-to-reel tapes
300 digital phonorecords
The expected date of our initial distribution of phonorecords already made (if any) or expected to be made under the compulsory license is approximately March 15th , 2011.
The name of the principal recording artist or group actually engaged or expected to be engaged in rendering the performances fixed on phonorecords already made (if any) or expected to be made under the compulsory license is The Happytones.
The catalog number or numbers used or expected to be used is unknown at this time. The label name or names, used or expected to be used on phonorecords already made (if any) or expected to be made under the compulsory license is H-tone Records. We will write to you if and when this information becomes available or changes.
In the case of phonorecords already made (if any) under the compulsory license, the date or dates these were manufactured is not applicable, as no copies have yet been made.
Pursuant to § 201.18 (b) we hereby request that you provide within two weeks of the receipt of this Notice of Intention, the name and address of the copyright owner or its agent upon whom we shall serve Statements of Account and the monthly royalty in accordance with §201.19(a)(4) If this Notice is signed by a duly authorized agent for the person or entity intending to obtain the compulsory license, the agent, by signing below affirms that he or she is authorized to execute the Notice of Intention on behalf of the person or entity intending to obtain the compulsory license.
Sincerely,
SIGNATURE
Print name Title, Company/Organization
_______________________________________________
Tips on Filling out the Notice of Intention
Don’t Reference Anything Outside the Notice. Your notice must be clearly intelligible, legible, and unambiguous. That’s probably obvious to you. But what may not be obvious is that, to be “unambiguous”, nothing in your letter can reference facts or information contained in other documents or records.
The idea is that anyone reading your Notice of Intention has all the information they need, right there in the Notice, to fully and properly account for your use of the copyrighted material.
In other words you can’t say, “If we sell out our show then we will sell 200 copies of your song. But if we don’t, we will only purchase 100 copies.” Why? Because this references a fact –whether or not you sold out your show- that isn’t contained in the letter.
What Happens If You Do Not Know the Answer
Life is a little messy. Do your best to be accurate, but so long as you write information “in good faith” and on the basis of the best knowledge, information, and belief of the person signing the Notice, you’re probably ok.
If later developments make your information inaccurate, the first Notice is still valid. You just need to send an updated follow-up Notice to make the corrections.
The Moral of the Story
Limelight, Songfile or EasySongLicensing make life a lot easier. Use them! But if you run into trouble, they aren't your only options. If you make sure to contact the right person, the right way and make the right payments then no one can deny you the right to record any published song.
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