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Licensing and Distribution

2/11/2012

16 Comments

 
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.      
16 Comments
Mark Meikle link
3/9/2012 04:25:12 am

Excellent article. Thanks for referencing our service. What separates us from the competition is that you can talk to a real person. We really care about your project and give you personalized help. As you've pointed out, under the Compulsory Law, we really can help you license ANY song in about 1-2 business days.

Reply
Jonathan Minkoff link
3/9/2012 05:25:18 am

Mark,

Thank you for your kind words. I know my readers are happy that you provide such an important service at such a reasonable fee. Keep up the great work!

Jonathan

Reply
Saleena Bhoyroo-Agyei
10/5/2020 12:50:50 pm

Hello! We are in need of advice, we have contacted easysonglicensing but they said it's not possible to get our cover song rights. Please could you give us some advice?

Reply
Outlook setting link
7/29/2013 07:58:14 pm

I saw a cappella for the first time when I was nine and I am impressed by this art form. Since there is no musical instruments were there, it feels like a unique experience for me. The tips that you given for a cappella licensing and distribution is very useful.

Reply
Neriyah Forde
2/9/2015 10:45:44 am

Hi can I get copyright permission if I have no money. I am not connected to any company but have a song with a sample I want to get played on the radio ? Thnks

Reply
Jonathan Minkoff link
2/9/2015 11:43:04 am

Neriyah,

It is possible for you to offer a percentage of what you earn as a composer instead of offering an upfront payment. In other words, the owner of the sample would be paid and credited as a co-composer of the song you write using it. Good luck!

Reply
Peter Hollens link
2/16/2015 02:48:13 am

Or you skip ALL of that and go to https://loudr.fm/ and distribute and license your music in a matter of minutes.

Reply
Jonathan Minkoff link
2/16/2015 05:07:31 am

Hey there Peter! Thanks for the comment.

Using Loudr for the sole purpose of licensing music is a little like buying a car to get the stereo.

Loudr is a multifaceted distribution deal; only one part of which includes getting cover licenses. There are many other rights involved and artists should be sure they understand BEFORE they agree.

For instance, as of 2/16/15 ...

Loudr requires you to permit "pay what you want" pricing for your album. Not every artist may want that.

Loudr gets 30% of any covers you sell on a non-Loudr site. So on iTunes, for instance, your distribution fees would have just doubled.

Loudr also requires you allow re-downloading of your songs for free.

Loudr gets exclusive rights to use your songs commercially, or in movies without further consent from you.

Loudr gets to stream your full tracks, on demand, to its users for free, to help promote their catalog.

There are a lot of rights that go beyond simple distribution.

Here is a link to Loudr costs: https://loudr.fm/pricing

Loudr is largely using the same methods described in the article above to license your songs, and they are charging you the full costs of doing so *in addition* to their fee split for distributing your music and in addition to fee processing costs.

If you are looking for a distribution deal where your music is part of a catalog, where you can let someone else do the hosting, placement, collection, etc., Loudr is a great place to check out. They offer a really full collection of services to thousands of very small artists, and a few larger ones.

But if *all* you really want is a license to record cover songs, Loudr is probably too much car for the stereo.

Reply
Miranda Chavez
5/7/2017 11:37:32 pm

I have a question that I can't seem to find the answer to anywhere. Is it necessary to obtain a license of some sort if I wanted to use an a cappella cover in my youtube videos? Would it be considered fair use if it is a cover?(For example: Elastic Heart by the Nor-Easters, an a cappella cover of the song by Sia). Thanks!

Reply
Jonathan Minkoff
5/8/2017 08:33:02 am

Miranda,

To use music in a video, you need a synch license from the composers and the performers/artists. However, making your life easier, Youtube has arranged for licenses with many major labels. If you can find many other covers (not just the original) of Elastic Heart then you will probably have access to that license, although it may interfere with your income stream from views. But leaving income streams aside, that means you will likely only need permission from the Nor-Easters. This will probably require direct negotiations as they very unlikely to have licensed their performance to youtube.

As for Fair Use, I urge you to read this article: http://www.acappella101.com/home/fair-use-using-others-works-without-permission-or-payment

A good example of Fair Use might be if your video used very short snippets of the song to help students analyze some aspect of songwriting or arranging. And you were a non-profit organization. And you provided links to the public to buy the original versions.

Good luck!

Jonathan

Reply
Jonathan link
8/18/2021 09:54:33 am

Jonathan, as to the prior inquiry and your response, wouldn’t the person creating the video also need to secure/pay for the compulsory license given that they are creating a cover? Your reply mentions only the sync, but I would think they would need that and the compulsory, no?

Jonathan
8/18/2021 12:08:49 pm

This is a reply to the reply. The question that appears to be being asked is "Do you need a compulsory license to synch a preexisting sound recording of a non-public domain song to a video in addition addition to a synch license? The answer is no in this instance because the post says "use an cappella cover", not create one. Compulsory licenses are for creating new copies of sound recordings. Now, that original sound recording should be under a compulsory license, of course. But that wasn't what was asked, as I read it. If you want to distribute new (ie not yet licensed) copies of your sound recording of a cover of a non-public domain song, you will indeed need a compulsory license. Hope that helps!

Z
5/9/2017 07:38:43 am

Hello Jonathan,
1)What sites should I used for licensing/distribution if I live in Europe. Same ones written on this page?What about if the song is european based and in French?
2)if I want to teach how to sing a song on the web from an existing recording,I can use snippets of the original recording?How many seconds maximum?
And if I sing the whole song a capella,again to teach,that a capella part,my voice doesn't need a licensing/distribution deal right?What about if I sell my voice training on a DVD,and use a short snippet of the original song,it is still considered as Fair use if I am a non profit organisation?
3)on youtube,if you use a famous song original recording without paying the original artist and doesn't want to loose your monetization,what's the rule?5 seconds use?1seconds use?Or you can't?
4)If the a capella cover is a medley of 10 songs,you need to pay 10 times 9 cents?
5)If I bought the a capella COVER arrangement from the a capella arranger,do I have to share my sale revenue with him?How much per sale?
6)finally,how does it work when you do a live performance of a cover in a capella where you charge a fee for a ticket. Do you have to share the profit?How much?Who do you pay it to and when?

Reply
Jonathan Minkoff
5/9/2017 08:10:28 am

Z- You are full of questions! These are general answers in the US. But like my disclaimer says, this is not legal advice for YOUR situation. For that you need to hire your own attorney. That said, generally... 1) I have never practiced law in Europe so I can't answer that one at all. 2) What you are describing could be fair use (READ THIS: http://www.acappella101.com/home/fair-use-using-others-works-without-permission-or-payment ) if the snippets are short. There is no rule for how long those snippets may be. The courts tend to look at the effect of the use. If watching your video could be a substitute for buying the song then you have a problem. See my article on fair use ( http://www.acappella101.com/home/fair-use-using-others-works-without-permission-or-payment ) for more details related to your next questions. 3) Youtube isn't always even-handed in how they enforce rules, but if your use is fair use then you should keep all monetization. If not, then the original author makes the decision to grab monetization, share monetization or pull the content completely. There is no precise amount of time that is allowed under Fair Use. It has to do with the fair use analysis as described in the article liked to above. 4) If the songs are identifiable, then yes, you need to pay at least 9.1 cents for each use. However, keep in mind that technically, you have no clear right to make a medley or mash-up, even if you do pay. Most composers don't make a fuss about it so long as you pay, but one could if they chose to. So there's risk. 5) This would depend on your agreement -written or oral- with the arranger. But generally in the US, the arranger has no rights to revenue from sales or performance and the composer is the one that must be paid. EXCEPTION: treat the arranger as an author if the song is in the public domain (read about Public Domain here: http://www.acappella101.com/home/public-domain ) 6) Live performance rights are generally handled by the VENUE in which you perform. They often have a blanket license that covers the songs you want to perform. Or alternatively, you can make an agreement with a PRO (Performing Rights Organization) like BMI, ASCAP, etc. WHEW!!! OK Good luck!

-Jonathan Minkoff

Reply
Steve Brandano
5/22/2021 02:10:51 pm

So is what distinguishes a cover song and a derivative work (ie not needing permission vs needing it) simply about whether or not you change the fundamental character of the song in your arrangement?

Reply
Jonathan Minkoff
5/24/2021 01:39:36 pm

Steve,

You seem to be asking where the line is between when an arrangement changes so much that it becomes a derivative work (needing permission) vs. an arrangement which, in the case of a licensed recording, does not require additional permission and in the case of performance MAY require additional permission (gray area of the law) and in selling sheet music, WOULD always require permission no matter how much alteration takes place.

The answer is that there is no bright line test.

Most composers are happy to be paid and don't seek to carefully control how arrangements express a different artistic viewpoint.

There's little question that chords, rhythms, instrumentation and key can all be changed at the arrangers discretion. Alterations of the melody are often tolerated, though this area gets a little more gray.

Lyric changes are perhaps furthest across the line towards derivative work. And the more substantial the change, the stronger the argument for a derivative work instead of an arrangement. It is well established that TRANSLATING the lyrics of a song into another language DOES constitute a derivative work and is not covered under arranging.

Hope that helps! Good luck!

Jonathan

Reply



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Nothing on this site, whether an article or a comment, or otherwise, is legal or tax advice. It's merely a general discussion of the law. If you have a specific question or situation requiring legal or tax counsel, you need to speak to a specific lawyer, personally, who will ask you specific questions about your specific situation which will allow him or her to do specific research in order to give you specific advice.