2.08.2011

Legal issues: When you need permission

When do you need the copyright holder's permission?
Generally, as long as you are not making money off of a cover and are giving the original artist credit, there can be no legal ramifications for covering a song. However, if the song is played at a concert, bar, or other venue where an admissions fee is paid, things can sometimes get dicey. It is always best to obtain permission from the original artist to play things safe, but you still might be surprised regarding how strict The American Society of Composers, Authors, and Publishers (ASCAP), may seem.

This is by no means an exhaustive list, but according to the ASCAP, you must get permission from the copyright holder to make copies of or re-record an existing song. Anyone interested in distributing physical copies or a cover song should therefore seek the original artist's permission. In addition, whenever another artist's music is used as part of training seminars, conventions, or other commercial or business presentations, permission is required, even if a cover is just played as a fun way to break up sessions.

Business owners need to be especially cognitive of copyright laws, even independent of covering songs. Most people are aware that movies must seek permission to use an artist's song. However, many may not know that the music you listen to when you call a company and are "on hold" is considered a public performance, and therefore requires permission from ASCAP or from the copyright owner. Copyright law is pretty strict, and it is much better to pay the initial fees than deal with subsequent lawsuits.

So how much does it cost to obtain permission to cover a song?
In short, it depends. However, the federal government controls how much individuals covering an original song must pay artists for physical recordings (such as CDs) and permanent digital downloads (such as distributing a song on iTunes). Currently, individuals must pay 9.1 cents per copy for songs that are less than or equal to 5 minutes. For every minute beyond this 5 minute mark, the additional charge is 1.75 cents. So, if you want to charge iTunes users $1 to download your cover song, you will make, at most, 90.9 cents for that song. For a song that is, say 10 minutes, you are looking at 82.15 cents. And of course this does not include the iTunes fees. For any ring tone enthusiasts, the statutory mechanical royalty rate for ringtones is 24 cents per copy.

While the prices may seem too high, too low, or simply arbitrary, it is important to keep in mind the purpose of these costs. The costs are not meant to be prohibitive; with high costs amateur artists would be unable to produce any covers at all. However, the original artist should be compensated for his or her work, especially in the case of a cover making significant profit off of this individual's labor. Some individuals make their living off of music, and the average professional musician may not be making as much money as you think.

3 comments:

  1. This is a great overview of the legal issues pertaining to covered songs - the headings you use break up the material so that it's easy to digest. Your discussion addresses traditional covers very thoroughly, but what are the legal issues surrounding artists like Girl Talk and Pretty Lights who use digital sampling to piece together the work of other artists? I've always wondered how that is allowed, and under what conditions.

    I'm really looking forward to the many topics that you can get into with your blog - for a seemingly narrow topic (compared to the traditional "music blog"), it's actually quite dense!

    Celeste

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  2. How much do you think it will cost to use the David Bowie song Fame 90' in the credits of a film that will be available through streams online and then distributed on DVD etc?
    I've heard varied info from the $.09 cent fee each download all the way up to a $100,000 royalty fee or $25,000 to remake/cover it for the film.
    The company that handles the rights to the song has not gotten back to us with the details and the deadline is drawing near.
    Any ideas, experience w/ using a major artist's song in a movie?

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  3. It is not correct to say that you need permission to record a cover. You only need permission if the song has never been previously recorded. What you say regarding mechanical royalties is, however, correct, as is the fact that permission must be obtained to perform a work publicly, permission which is normally granted through a performing rights society such as ASCAP or BMI.

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