January 26, 2011

How You Can Clear Cover Songs, Samples, and Handle Public Domain Works

By Alex Holz (Senior Director of Artist and Community Relations / rightsflow®, inc.)

Flying an airplane and performing brain surgery (legally!) require one. So does distributing music. What is it? A license!

Licenses allow you to legally distribute, cover, and adapt music you don't own or control. Knowing which licenses exist and how to obtain them saves headaches, aggravation, and most importantly — exorbitant legal fees incurred from copyright infringement.

The Golden Rule of Licensing: if you don't own or control it, you likely need a license to use it. There are a few exceptions (such as public domain compositions), though the golden rule is a common sense guideline that can help determine when licenses are needed.

What do you want to do with the music? In order to determine the appropriate license, you'll first need to answer some basic questions. Are you recording a cover song or adapting/altering an existing work? Do you want to include a sampled recording, or re-create the music entirely? Are you using a public domain composition, or one that is still protected under copyright? Each presents unique licensing challenges that must be addressed.

Make a Cover Song / "Re-make:"
Cover songs provide an easy way to target a new marketing base when placed alongside your own original works. In the digital age, cover songs can act as effective search engine optimizers for music (especially when you're covering artists who don't currently appear on iTunes, Amazon, Rhapsody, etc.).

As a professional songwriter, you may already be aware that anyone who wants to record a version of your song needs a mechanical license from the copyright owner, usually you or your publisher. Similarly, if you chose to record your own version of someone else's previously recorded and distributed music, you would need to secure a mechanical license. A mechanical license is actually a "compulsory" license granted to users under U.S. copyright law. Usually, music users obtain these licenses through a music publisher or agent (such as Limelight).

There are several entities that can assist in clearing mechanical licenses and ensuring songwriters get paid. Limelight is a simple, a one-stop shop to clear any cover song in order to distribute by means of digital downloads, physical albums, interactive streaming, and ringtones. Customers create an account and finalize their mechanical licensing and royalty accounting needs within minutes via a simple three-step process for a service fee of $15 per license (or less based on number of licenses) plus required statutory publishing royalties as set by law. Artists, bands and other musical groups can clear any song and ensure 100% of royalties are paid to the appropriate publishers and songwriters.

As a member benefit, ASCAP members receive a 25% discount off all Limelight service fees. To qualify, just designate ASCAP as your PRO upon registration sign-up.

Use a Sample
"Sampling" involves taking an existing piece of copyrighted music and combining it with another to create a new work. While sample usage has been especially prevalent in hip-hop and electronic music over the last 30+ years, samples have also been incorporated into other genres and present challenges in every scenario. Sample clearances are more complicated than cover songs since they can involve two separate copyrighted works (the music composition and the sound recording), multiple rights-holders, and are always subject to negotiation.

For instance, if you want to sample the synth line from Van Halen's "Jump", you would need to secure licenses from the record label (for the master), as well as the music publisher (for the underlying musical composition).

If you decided to re-create the synth part yourself as a music bed, it would still require negotiating directly with the music publisher (if they didn't decide to reject the use entirely). Unlike a mechanical license, sample usage is not governed by a compulsory license and requires directly negotiating with all parties. The cost can range from cheap (gratis) to costly depending on the sample(s) being used. Without licensing from the appropriate copyright owners, you are liable for copyright infringement and can be sued for substantial sums of money.

Record labels and music publishers alike have in-house licensing contacts who handle such requests (some even having online forms). There are several agents and legal consultants who specialize in sample clearance and can assist if you choose to hire one.

Using a Public Domain Work:
Public domain, like sampling, is also a complex area in the licensing world. Public domain works (as they relate to music) are compositions that are not under copyright or whose term has expired. While a composition may have fallen into the public domain, an arrangement of that composition that possesses sufficient originality may be considered a new composition and thus, protected by copyright.

If you decide to record your own version of a public domain composition, you would not need to secure a mechanical license or pay royalties, unless you are using a copyrighted arrangement of that song. A simple rule of thumb — if you used sheet music to learn it, then you will need to secure a license. You can often find the basic copyright information on the sheet music..

Holiday music is the area where most questions arise. Many classic Christmas songs that are presumed to be in the public domain are in fact copyrighted, so make sure to double-check your sources before deciding a track is in the public domain. Like sampling, public domain is also an area where it is often best to consult a legal expert before distribution.

PD Info Online (www.pdinfo.com) is a good starting point if the liner notes and copyright information are unavailable. Searching the ASCAP repertory (www.ascap.com/ace) will also produce valuable contact details in determining whether a work is protected or not.

The licensing world of cover songs, mechanical licenses, sample clearances, and public domain may contain complex rules and regulations for the casual music creator, though one adage holds true: If you ever have a question — don't be afraid to ask! Please visit the Limelight site (www.songclearance.com) -- and specifically our FAQ section (www.songclearance.com/page/faq) -- for additional information and answers to many other questions concerning mechanical licensing.

At RightsFlow (www.RightsFlow.com), we're helping artists, labels, distributors and online music services to license, account and pay songwriters and publishers.

Designed by musicians for musicians, Limelight (www.songclearance.com) is a simple way to clear any cover song. Are you ready to clear a song for your release? Get started and create a free account today!