Copyright question

[straticus]

My band just recorded a cover of an old (1975) Dylan song and we'd like to put it on our CD. What do we need to do regarding copyright law? We don't want to get into trouble!:eek:

[amper]

You need to find out who owns the rights to the song and then get permission from them to record it. The rights are usually retained by the songwriter, which may or may not be Dylan. I'm not certain off hand where you would go about discovering the rightholder, but the first three places I'd look are the Library of Congress, ASCAP, and BMI.

[straticus]

So do I just email the LoC, ASCAP or BMI and ask if they hold the copyright?

I'm really lost here about exactly what to do next and how to go about it.

[MichaelK]

Originally posted by amper
You need to find out who owns the rights to the song and then get permission from them to record it. The rights are usually retained by the songwriter, which may or may not be Dylan. I'm not certain off hand where you would go about discovering the rightholder, but the first three places I'd look are the Library of Congress, ASCAP, and BMI.
No, no and no.

You don't need permission.

Your record company needs to pay mechanical royalties to the publisher. It's 8 point something cents per song per copy. If you don't really have a record company, you'll have to do it yourself. Or just not do it at all and hope Dylan's publisher doesn't take you to court, or at least threaten to. Which they probably wouldn't bother doing, considering the number of copies we're talking about... if you print 1,000 CDs you'll owe them about $90.00. But they might do it just to make an example of you... who knows? My advice is avoid the hassle and just make a CD of your own songs. When you have a record label willing to deal with that crap, then you cover Dylan.

[GuitslingerTim]

I only know what I've read, but according to literature from BMI and ASCAP, if a song is published, and the author is registered with one of the two organizations, anyone covering a song by the author can contact the Harry Fox Agency and pay them a preset fee. The disadvantage in doing that is you pay the full price, which is fine if you're releasing a small printing of a record. Major labels and artists that anticipate significant sales often negotiate a lower rate.

[amper]

Originally posted by straticus
So do I just email the LoC, ASCAP or BMI and ask if they hold the copyright?

I'm really lost here about exactly what to do next and how to go about it.

No, what I meant was that one of those three organizations might be able to help you track down the rightholder.

Check out this link:

http://www.nolo.com/lawcenter/auntie/questions.cfm/ObjectID/04760AAB-A6E6-41E2-BEB93E82B5891B47/catID/2EB060FE-5A4B-4D81-883B0E540CC4CB1E

[straticus]

MichaelK,
We don't have a record company. It's just a side project. Three of us from our original band recorded the cover because no-one else in the band wanted to. It came out so good that now we want to do some more stuff, originals and maybe some more covers.

GuitslingerTim,
The Harry Fox Agency sounds very familiar and I think I remember hearing this advise before, now that you mention them. Thanks for bring them up.

OK, so here's another question. The cover is pretty different from the original ........ (*side track* that brings up another point .... why do a cover that sounds like the original? For instance, I just heard a cover of Comfortably Numb and all they did was crank up some Mesa Boogies and play it just the same. The leads were even played the same, note for note ............. minus any feel or emotion of course. Drives me nuts! *end of side track*) anyway my question is this ......... the cover is very different from the original so should we get our version copyrighted or would that be a huge NO NO?

[straticus]

Originally posted by amper
No, what I meant was that one of those three organizations might be able to help you track down the rightholder.

Check out this link:

http://www.nolo.com/lawcenter/auntie/questions.cfm/ObjectID/04760AAB-A6E6-41E2-BEB93E82B5891B47/catID/2EB060FE-5A4B-4D81-883B0E540CC4CB1E

Great link. Thanks!

[T.Wesley]

Even if the version is vastly different sounding, you still didn't WRITE the lyrics - you just came up with a different musical arrangement.

You still have to pay :)

--chiba

[MichaelK]

Originally posted by GuitslingerTim
anyone covering a song by the author can contact the Harry Fox Agency and pay them a preset fee.
This is correct. I remember now, trying to track down a couple of old tunes we did on our CD just in case they were protected. Turns out they were public domain.

On the other hand, I personally know a family who holds the copyrights to over 2000 songs written by one of their members, now deceased. When I talked to them about mechanical royalties at a time I was considering doing one of those songs on the CD, they said all I had to do was mail them a check when I had the CDs pressed. They preferred to keep things simple. That would have been no problem, but we didn't include the song.

All that said... Tim is correct.

[straticus]

Originally posted by Chiba
Even if the version is vastly different sounding, you still didn't WRITE the lyrics - you just came up with a different musical arrangement.

You still have to pay :)

--chiba

Yeah and that's totally fine. We don't mind paying. I'm just wondering if we should copyright our version of it. Is that the proper thing to do? I mean, do people copyright their version of someone else's song?

BTW Wes, I used the Tele on the cover and that guitar rocks big time! Yesterdays rehearsal was the first one with the complete band since I got the Tele. After they heard it they were all saying "Please don't sell this one"! Thanks for a great guitar!

BC :)

[LSchefman]

Amper is incorrect, and Michael is correct. You have the right to cover any tune you like, as long as you pay the "compulsory" mechanical royalty, which was recently raised to 8.5 cents per song.

This is Federal law since 1909 or so.

The Harry Fox Agency can deal with the royalty payments. You do not need the permission of the writers. You do NOT need to track down the copyright holder to obtain permission.

Do NOT attempt to file a copyright on someone else's song. That could be regarded as infringement, and expose you to serious claims for incredibly large damages.

You can copyright a RECORDING as a compilation, but make sure you correctly credit the authors of each song. There is a form for it on the Library of Congress website. And under the Digital Music Distribution Act, as an artist you can receive a download performance royalty even if you recorded someone else's song.

If you have questions about any of this, contact your entertainment lawyer. If you need one, call me, and I will try to help you locate someone. I practice in the area of entertainment law, but it's best to use someone in your own state. There are lots of folks I can recommend in California.

[straticus]

Originally posted by LSchefman
Amper is incorrect, and Michael is correct. You have the right to cover any tune you like, as long as you pay the "compulsory" mechanical royalty, which was recently raised to 8.5 cents per song.

This is Federal law since 1909 or so.

The Harry Fox Agency can deal with the royalty payments. You do not need the permission of the writers. You do NOT need to track down the copyright holder to obtain permission.

Do NOT attempt to file a copyright on someone else's song. That could be regarded as infringement, and expose you to serious claims for incredibly large damages.

You can copyright a RECORDING as a compilation, but make sure you correctly credit the authors of each song. There is a form for it on the Library of Congress website. And under the Digital Music Distribution Act, as an artist you can receive a download performance royalty even if you recorded someone else's song.

If you have questions about any of this, contact your entertainment lawyer. If you need one, call me, and I will try to help you locate someone. I practice in the area of entertainment law, but it's best to use someone in your own state. There are lots of folks I can recommend in California.

Thanks very much.:)

[LSchefman]

You are very welcome.

I know how confusing copyright law can be. Even most lawyers don't really understand it.

That's because a lot of copyright law is no-man's land, with big gaping holes and gaps where important questions arise, and there are no statutes to answer the questions.

And then, too, there are inconsistencies in copyright law.

For example, you can't transfer your copyright without a written agreement.

Except you can impliedly license it by conduct, and you can transfer it if it's a work made for hire, without a written agreement.

Stuff like this makes very little sense to me, but that's what it is.

[LSchefman]

>>except that you can transfer your common law (provided under state law) copyrights without a written agreement! God love us lawyers, eh?<<

Correct me if I'm wrong, but I believe that was under the 1909 act. The '76 act requires at least a confirming writing of an oral transfer.

[Greggy]

Originally posted by LSchefman
[B]

................

I know how confusing copyright law can be. Even most lawyers don't really understand it.

................



This is the category I fall into. I have litigated for some years, but never practiced intellectual property law. I've read one treatise, but have forgotten much of it (use it or lose it).

Anyway, here are my questions: What is the distinction between mechanical and performance royalty rights (which I have a grasp of) on the one hand and publisher's royalty rights on the other hand? How does the role of publisher fit into the larger picture? Is he/she a middleman between the artist/creator and the label? Is the publisher sometimes also the artist/creator, but not always? Does the artist sometimes negotiate the publisher's rights to a publisher in return for promoting the original work to third persons?

I'm teaching law and economics this semester. While I always address real and personal property issues, I avoid intellectual property for lack of knowledge. So I'm curious.

[LSchefman]

I don't know anything about intellectual property, because of course, I have no intellect. ;)

But I'll try to answer your questions as best I can.

>>What is the distinction between mechanical and performance royalty rights (which I have a grasp of) on the one hand and publisher's royalty rights on the other hand?<<

Remember first that the publisher acquires control of the copyright, and the creator of the music goes from controlling the copyright to becoming the "writer".

Publishers usually receive half of ASCAP, BMI, or SESAC performance royalties (there are some issues about this in terms of the accounting regarding SESAC or other foreign societies), and the "writer's share" is the other half.

Mechanical royalties are also split 50/50 between the publishers and the writers, BUT what complicates the mechanical royalty situation is that there are usually "copublishing" agreements, where the writer retains a share of the publishing, so the writer and publisher, in effect, divide the publisher's 50%.

>>How does the role of publisher fit into the larger picture? Is he/she a middleman between the artist/creator and the label?<<

A publisher sometimes will actively find a label or other outlets for exploitation of the artist's work, such as movies or television. The publisher will also handle print issues (remember sheet music). Often with labels, the publisher is the creature of a "copublishing" agreement which is between the artist and the label, and there is an "exclusive songwriter agreement" by which the artist's entire output for a certain term is tied up.

>>Is the publisher sometimes also the artist/creator, but not always?<<

Yes, especially in the case of lesser known artists who don't sell much material. Often there is no reason whatsoever for an artist to enter into a publishing deal, especially in the case of indie releases.

>>Does the artist sometimes negotiate the publisher's rights to a publisher in return for promoting the original work to third persons?<<

I'm a little confused by the question. The publisher generally works on a percentage. Sometimes there's an advance to an artist, if the artist is someone the publisher really, really wants.

[HammyD]

Les...please write a book! Seriously!!! Write a book in langauge the average Gear Pager without a law degree can understand and sell it as a downloadable PDF via the net.

You'll make some serious cash via the net and provide a valuable service!

I know there are a ton of people who would really like to understand and comply with the law....(and for the ones who don't, well you can defend them in court!;) )

[straticus]

This is why I love this forum. There is so much valuable (literally) information here.:)

[LSchefman]

>>I disagree.
The more business-savvy (and 'powerful', as it were) artists, as well, attempt to hold on to as much of their own publishing as is possible; Madonna would be one example, of many<<

Empty, those are all great points you've made; however, the question was: "Is the publisher sometimes also the artist/creator..?" It wasn't "Should the artist/creator also be the publisher?"

Since far fewer people releasing independent records as a percentage have publishing deals, or even know what publishing is, I answered the question that way. Of COURSE control of your publishing is important, but as you say, an artist has to be in a powerful position to get that from a label.

For most people putting out their own CD, it's kind of a waste to go and look for a publisher, because, let's face it, most artist indie releases aren't commercially viable in a practical sense. Theoretically, if someone is talented, yes, by all means, I agree with you.

As an example, we just got one of the artists on my little label a publishing deal with a company that promotes to TV and movies. The guy is an excellent writer, has won a bunch of awards, and has established enough cred that the publisher wanted to sit down and listen to the work. In this case, it made sense to seek a deal like that out. However, it's non-exclusive, and will apply strictly to what the company is able to successfully promote.

>>But, of course, mechanical royalties are distinguished by being based solely upon units-of-manufacture, ie the physical production of "concrete goods"<<

Actually, most record contracts base mechanicals on units of SALE, under a label's arcane formula, not units of manufacture. There are always deductions for returns, cutouts, giveaways, etc etc etc.

>>Les...please write a book! Seriously!!! Write a book in langauge the average Gear Pager without a law degree can understand<<

As you can see from Empty's post, others know more than I do! But thanks for the compliment. ;)

I have a feeling that Empty has a lot of knowledge in this area, and he seems like a darn good writer to me!

If I'm gonna write anything, it's always gonna be music, not law. I think I get more pleasure out of getting ASCAP royalties than writing about them. :cool:

[Greggy]

Les and empty, thanks for your insights. That cleared up everything for me. I'm currently teaching personal property, including intangible personal property. I brought up mechanical and performance rights as one type of intangible property interest. The class was very interested and asked many questions, so I thought I'd do my homework and incorporate copyright into next semester's class. Great stuff guys, thanks again.:)

[LSchefman]

No problem, Greggy!

Teaching law sounds like a good gig, BTW.

Now if you need someone to teach studio chops....;)

[Greggy]

Originally posted by LSchefman
No problem, Greggy!

Teaching law sounds like a good gig, BTW.

Now if you need someone to teach studio chops....;)

It's an undergrad course in "law and economics." I recently had a couple of my former students go on to law school, and they are doing well, or so they tell me.

If you start a course teaching studio chops, I'll sign up and sit in the first row and ask too many questions. That's what we called a "gunner" in law school.:D

[LSchefman]

>>Again, I agree with you, as my experiences in these matters are solely those of writer & artist, whose lawyer has been a very good teacher.<<

You had a great teacher, and you're obviously an extremely bright person, who has picked up on a difficult subject REALLY well.

Kudos!

[MichaelK]

Originally posted by empty
Yes, that may be mostly true..... and, it may be one more reason for new artists to avoid the major labels, wherever possible.
Here I disagree. IMO it's absurd that a new artist should avoid a major label deal because he won't control the publishing. These days he'll be lucky even to get most of his writer's share, because the label's publishing arm will gobble that up as well, if they can.

It's all dandy to sit back and tell people that they should refuse to give away their publishing, but the fact is a struggling up-and-coming artist has zero clout and can't get in a single door by himself. Publishers perform a service: they shop your songs. They are as interested in making money as you are. They're in that business because labels and/or producers who are looking for songs invite them to submit material, not the masses of artists crowding their doors with homebaked garbage in hand. If a publisher want their rightful half of my royalties, and there are actually royalties to be had, I'd be the last to complain!

If a new artist doesn't have publishing yet, maybe he can negotiate a few items in a label contract he's offered, maybe not. Because where the labels have the new artist by the balls is this: here's an offer to cut his songs staring him right in the face, and even 10% of something (if he's lucky) is better than 100% of nothing. Everyone at the table knows it, and 100% of nothing is what the artist will have if he "avoids wherever possible" any real shot at recognition.

Of course, if there are valid reasons for a newcomer to avoid a deal, fine. But publishing ain't one of them, unless they're locking up all future material for an unreasonable amount of time, or something like that. In other words, a career killer.

The way to build clout is to build recognition first, to get your name and your music OUT THERE. You walk into that meeting with guns loaded, the door will spit you right back out onto the street and you'll hear behind you, "Next...?"

[Greggy]

Originally posted by MichaelK
Here I disagree. IMO it's absurd that a new artist should avoid a major label deal because he won't control the publishing. These days he'll be lucky even to get most of his writer's share, because the label's publishing arm will gobble that up as well, if they can.

It's all dandy to sit back and tell people that they should refuse to give away their publishing, but the fact is a struggling up-and-coming artist has zero clout and can't get in a single door by himself. Publishers perform a service: they shop your songs. They are as interested in making money as you are. They're in that business because labels and/or producers who are looking for songs invite them to submit material, not the masses of artists crowding their doors with homebaked garbage in hand. If a publisher want their rightful half of my royalties, and there are actually royalties to be had, I'd be the last to complain!

If a new artist doesn't have publishing yet, maybe he can negotiate a few items in a label contract he's offered, maybe not. Because where the labels have the new artist by the balls is this: here's an offer to cut his songs staring him right in the face, and even 10% of something (if he's lucky) is better than 100% of nothing. Everyone at the table knows it, and 100% of nothing is what the artist will have if he "avoids wherever possible" any real shot at recognition.

Of course, if there are valid reasons for a newcomer to avoid a deal, fine. But publishing ain't one of them, unless they're locking up all future material for an unreasonable amount of time, or something like that. In other words, a career killer.

The way to build clout is to build recognition first, to get your name and your music OUT THERE. You walk into that meeting with guns loaded, the door will spit you right back out onto the street again and you'll hear behind you, "Next...?"

Michael,

Your last paragraph hits home with me. Can't count the number of times similar upstart clients of mine were in the same postition vis-a-vis negotiation opponents. Sometimes you gotta take it up the *ss before ultimately succeeding. Tough world, indeed.

[MichaelK]

>> Sometimes you gotta take it up the *ss before ultimately succeeding. Tough world, indeed.

I think it hapens for a looooong time on different levels. Even when one has "ultimately succeeded" (if such a career state exists).

You protect your interests when you can and when you can't, you make a judgement call: it this worth doing in the long run? And more importantly, can I get revenge one day? ;)

[Greggy]

Originally posted by MichaelK
>>

..............

And more importantly, can I get revenge one day? ;)

Oh Yeah, hearing you loud and clear. I'm still plotting mine.:D Not regarding the music biz, but other areas of endeavor.;)