|Question: I have noticed that almost every
singing entertainer in the business writes|
their own songs or is with someone who writes original songs.
How do I make a
cd for example as a tribute to Johnny Cash or Merle Haggard or just an
assortment of great established songs that were not written by me?
How do I do
that without getting
into copyright problems? Thanks.
|A Butterfly Production's response:|
"Music Clearance" is the process by which permission is obtained from the owner of a song (the people who wrote it) or a master recording (the people who recorded it), for use in a production, such as a CD compilation, a musical play, or a film project.
First, it's important to understand the difference between a song and a master recording.
For every song written, any number of artists may have made their own recording. As an example, "Jingle Bells" has been recorded by everyone from Bob Hope to Bugs Bunny. This means that song rights are separate from recording rights.
You cannot use any master recording without getting permission from the publisher(s). Conversely, if you gain permission from the publisher, but are denied use of a particular master recording, you can always use a different master recording or record your own master, with the publisher's permission.
Clearing the Song
Any number of composers can be involved in writing one song. Each of these composers may be represented by their own publisher. A music publisher, to generalize, acts as the representative of the composer for their individual rights in regards to anyone using their song.
In order to clear a song, it is necessary to locate and contact the representative of each composer, confirm their ownership or administration percentage rights (i.e., do they own a percentage of the song?), and negotiate a fee for use of their share of the song. Composer's representatives are usually music publishers.
Negotiating a fee for use of a song is based on the type of production you have (such as a film, television show, commercial, trade show, corporate meeting, CD-ROM, Web site, compilation record, etc.) Fees will also be based on how much of the song is used and the manner in which it is used. There are a number of rights within all these different media, including synchronization rights, mechanical rights, performance rights, and others.
Clearing a Master Recording
Clearance of the master recording has nothing to do with clearance of the song. Publishing companies and record companies are almost always totally separate entities. Since nobody can track down all composers or publishers to obtain such permissions, called licenses, agencies have been established.
Such copyright agencies exist in nearly every country, and they all have bilateral agreements with most other countries' agencies. That means they look after the rights of all copyright owners, national and foreign, in their respective countries. Therefore the coverage of copyright licensing is, in effect, worldwide.
The agency responsible for your licensing depends on the country you live in. Each agency knows the others very well, and they will direct you to the right one if you come to them by accident. Especially in the United States, there are several agencies doing the same type of licensing for only some of copyright owners, but all know and have the addresses of the others.
Here's the bottom line: If you are planning on putting cover songs on your next CD, you need to get a mechanical license in writing. A mechanical license cannot be denied, but it can be a tedious process.
Three ways to get a mechanical license
First, find out who owns the copyright on the composition by contacting BMIASCAP (212-621-6160) or SESAC (800-826-9996). Each Web site has a searchable database of songs, writers, and publishers. Armed with this info, you can contact the publisher and negotiate your own rates. (212-586-2000),
If you don't want to negotiate your own rates, contact the Harry Fox Agency (212-370-5330). The Harry Fox Agency is authorized to issue mechanical licenses at the statutory rate of $0.08 per song, up to five minutes in length. Songs longer than five minutes are calculated at $0.0155 per minute, per song. To figure out your royalty fee, multiply the cost per song by the number of units manufactured (e.g., one six-minute song on 1,000 CDs would cost 1,000 x [6 x $0.0155] = $93.00)
The statutory rate is set by Congress according to the following schedule:
2002 and 2003: 8¢ per song or 1.55¢ per minute
2004 and 2005: 8.5¢ per song or 1.65¢ per minute
2006 and later: 9.1¢ per song or 1.75¢ per minute
If you can't afford the standard fee, contact a group like the Volunteer Lawyers for the Arts (VLA). Each state has its own VLA. Use a Web search engine such as Google and search under Volunteer Lawyers for the Arts + Your State Name. Some VLA organizations have national listings on their Web sites. Check Philadelphia VLA and the New York VLA. Also try www.starvingartistslaw.com. They can often help negotiate reduced royalties for schools and nonprofit groups.
There is no minimum time for a sample; even two chords from a song can be very recognizable. The owners of the sample are not required to grant you permission, and if you do get permission, a portion of the income from sales will go to the sample owners. If you intend to publicly market a new song containing samples, be prepared to pay.
In U.S. copyright law there is nothing that says a copyright holder has to allow you to use their work in your new work. They can say "no" and are not required to explain why they have denied a request. This is why you should clear the samples before you master the song or record. Removing a sample on an already mastered element is difficult, time consuming, and expensive.
Copyright holders generally determine a sampling license fee based upon how much of the original work you've used and the extent to which the original work is featured in the new song. You will need to use your judgment according to the circumstances.
Before beginning a sample clearance, think about:
What element of the original song you sampled
How the sample was incorporated into the new song
The total number of samples needed to be cleared
The record label releasing the new work
The release date
The quickest way to transcribe the lyrics to the new song
When you will be mastering the song(s)
How many units of the new recording are being manufactured in the first manufacturing run
To obtain permission to sample a recorded work, contact the song's publisher.
Public Domain Music
The term "public domain" refers to the status of a work having no copyright protection and, therefore, belonging to the world. When a work is either in, or has fallen into, public domain, it is available for unrestricted use by anyone. Permission and/or payment are not required for use. Except with respect to certain foreign-originated works eligible for restoration of copyright, once a work falls into the public domain ("PD"), it can never be recaptured by the owner.
New material added to PD songs makes these compositions eligible for copyright to the extent new material is added and the public domain portion is not resurrected. "New material" includes editorial revisions of old lyrics, new lyrics, changes in melodies, arrangements, and compilations of versions of the same song.
New copyrights based on public domain material make it possible for writers and publishers to receive performance monies and mechanical license fees from record companies.
For example, several years ago music publishing giant Warner Chapell commissioned new arrangements of Gilbert & Sullivan operettas, for which they owned the copyright, in order to continue collecting a degree of royalties on these copyrights
To find out if a song is in the PD, you can have the copyright office or a private search service check the copyright status.
NOTE: You should be aware that even if a song or recording is in the PD in the US, it may still be protected by copyright overseas. To be used without permission, a public domain song must be cleared worldwide.
A helpful reference site to help identify public domain songs and public domain music is www.pdinfo.com.
Music Clearance Houses
This is a relatively new concept that is quickly growing in popularity. There are many owners of music content that want to allow that content to be used for other purposes, but don't have the time or facilities to operate a full-time music library. That's where music licensing facilitators (MLFs) have come into the picture.
Music lisensing facilitators have the knowledge and experience to efficiently and affordably research and license music in any genre for any type of production budget. Most of them offer easy-to-use, online clearance request forms, hands-on personalized support, and cost-effective clearance rates. The MLF will either handle the licensing themselves on behalf of their client, or will refer you to their client once you've identified music that you want to use.
Several well-known MLFs include:
Clear Songs (www.clearsongs.com)
License Music Now (www.licensemusicnow.com)
Music Resources Inc. (www.musicresources.com)
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