Mechanical Licenses

Recording someone else’s song (Covers).

If you are recording someone else’s copyrighted composition, you need to get a mechanical (compulsory) license in writing. It cannot be denied to anybody who wants to record a song as long as it’s been recorded once. This is different than the Master Use or Performance or Synchronization license for which you must obtain permission and negotiate rates.

There is no such thing as an “international copyright.” You must research and comply with the copyright laws of each country where you sell your music or lyrics written by someone else.

Mechanical licenses currently cover the release of a song via CD and digital download only. Other uses, such as streaming, conditional downloads, require a separate license from the publisher. It’s rather complicated right now.

Unless you are creating recordings that are covered under the “fair use” section of the U.S. Copyright Act, you must obtain licenses for your cover song recordings EVEN IF YOU ARE GIVING THEM AWAY!

Public Domain

Do not assume that an old piece of music is in the public domain and not subject to copyright. While the song may be in public domain, the particular arrangement you chose may currently be under copyright and the song will need to be licensed. So pay attention to any notation about “arranged by” or “edited by.” Public Domain rules of thumb: Any song or musical work published in 1922 or earlier is in the public domain in the USA. No sound recordings are PD in the USA due to a tangled complexity of federal and state law. Public domain status must be verified separately for each country where music is used. Music enters the public domain 70 years after the death of the author in most countries other than USA. However, copyright protection may be 95 years from publication date, 50 to 70 years after the death of the last surviving author, or other criteria depending on where the work was first published and how the work is to be used. And one more catch, due to a change in the PD law (the Sonny Bono Copyright Term Extension Act of 1998 – I kid you not), no new works will enter the public domain until January 1, 2019.  You can check PD Info.

Fair Use

This includes uses for educational purposes and for criticism or commentary (reviews in newspapers, for example.) Fair use does NOT include small quantity recordings or charity or religious organizations; nor does it exempt recordings you are distributing without charge (demos). Section 107 of the U.S. Copyright Act outlines fair uses of a copyrighted work.

Statutory Rates

As of January 1, 2006 the statutory mechanical rate is as follows:

9.1 Cents for songs
5 minutes or less

+ 1.75 Cents per minute or fraction thereof over 5 minutes.

Obtaining Mechanical Licenses

1. Find out who owns the copyright.

The “owner” is usually a publisher (or in some cases an individual) and often not just the writer. Where to look:
Harry Fox’s Songfile
Copyright Office database
BMI (http://www.bmi.com/)
ASCAP (http://www.ascap.com/)
SESAC (http://www.sesac.com/)
Music Publishers’ Association’s (www.mpa.org).

Be careful to identify the correct song by the right writer(s), as there are many songs with the same names (because you can’t copyright a title). For example, if you search Harry Fox for “Happy Birthday” (the one we typically think of is a copyrighted song, by the way), you’ll find 100 different songs named “Happy Birthday” by different writers. This is because you cannot copyright a title.

Further Reading: How to Investigate the Copyright Status of a Work (Copyright Office circular 22)

2. Obtain Mechanical License

There are three methods:

Method #1: Directly from the publisher/copyright holder.

Publishers that handle their own mechanical licenses often make the request process available at their websites now. Otherwise, send them a letter like this. You can sometimes negotiate the license rate or even get it for free. You can often obtain a publisher’s contact info from the “song indexing” departments at ASCAP and BMI. However, many publishers only license through Harry Fox (see Method #3 below).

If you know the copyright owner personally (a friend of yours, for example), you can write up a basic mechanical license between you and sign. I found some examples online here, here, here and here with a Google search. I suggest you consult an entertainment attorney who can draw one up in a flash.

Method #2: the U.S. Copyright Act

Follow the laborious procedure set out in the U.S. Copyright Act. These crazy requirements could only be followed by a bureaucrat and CPA. If you really want to, read:  Copyright License for Making and Distributing Phonorecords (circular 73) using a Letter of Intent.

Method #3: The Harry Fox Agency

The Harry Fox Agency SONGFILE issues mechanical licenses online for up to 2500 physical recordings and digital downloads (“digital phonorecord deliveries” or “DPD”) for many publishers (not all). They charge a fee but it’s small compared to the time and energy to do either of the other Methods. You’ll have your mechanical license almost immediately.

If you are pressing more than 2500 units of physical product or downloads, you’ll have to set up a Harry Fox Agency Licensee Account.

Caution: Songfile license fees are non-refundable, so don’t license until you are sure how many units you’re going to press or if you’re even going to include the song on your CD.

If you cannot find a particular piece of music listed on the HFA website, you must contact the publisher directly to request a license (Method #1).

What if I can’t find the publisher or the publisher won’t respond?

If you’ve exhausted all reasonable means and can’t get a license for the song(s) you’ve covered, you can file a Notice of Intention to Obtain a Compulsory License with the Library of Congress, Copyright Office, Licensing Division. Each song needs to be filed separately, and there’s a filing fee (per song). The Library of Congress will establish to whom royalties are paid by identifying the copyright owner. At that point, you’ll need to make all due royalty payments and make sure you pay! (Hint: “dot gov”!) If you find you need to go that route, make sure you compose your correspondence to these specifications (PDF), as prescribed by the US Copyright office. In the event you have any questions, the Library of Congress can provide you with detailed instructions concerning this form. Ask for the Copyright Office Regulations on Compulsory License for Making and Distributing Phonorecords, Circulars 96 Section 201.18 and 96 Section 201.19, and address your request to:

Library of Congress
Copyright Office
Licensing Division, LM-458
101 Independence Avenue, S.E.
Washington, D.C. 20557-6400

The factory needs a copy of the submitted Notice of Intention to Obtain a Compulsory License that was submitted to the Licensing Division of the Copyright Office.

Help

If you are a nonprofit group, the Volunteer Lawyers for the Arts (215) 545-3385 may be able to help negotiate reduced royalties.

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