The Cover Song Quagmire
Three Ways to Obtain Mechanical Licenses for Legally Recording/Distributing Cover Versions on CDs
For many musicians, a considerable amount of "play
time" is spent
learning other people's songs: either for cover band
performances, or merely to study another artist's work. If this sounds like
you, as your repertoire has grown, it's highly likely one or more
of those songs
has sparked something extra-special inside you. Why not
immortalize your efforts
by recording some of those magical numbers and putting them on a CD? At the
very least, one of those "classic" tracks might be the perfect way
your next disc!
But before you act, you need to know what steps you
need to take
to ensure you're protected, and the original songwriter gets
his/her due. With
this article, we'll take a look at the three primary paths you can
take to obtain
a mechanical license, a.k.a.
"Circular 73: Compulsory License For Making and Distributing
Phonorecords" to legally release your version of another artist's song. For
reality's sake, I'll also include a little "story" to go with it -- my personal experience
releasing an album comprised of covers -- to walk you through
tricky, time-consuming process. Let the games begin!
Way back in December 2000, I recorded a set of 10 cover songs,
intending them to be nothing more than a CD-R Christmas gift for my mother.
Nothing fancy, just a bunch of classic tunes (Beach Boys, Beatles,
Queen, etc.) I'd spent some time on months earlier, developing from an
"arrangement" standpoint to add to my repertoire and then recorded totally "raw" in my home studio. When
the holidays finally hit, needless to say, Ma dug my little
And as an added bonus, it was a big hit among my relatives!
Well, after playing some of these tracks for some of
enthusiastic friends, I was encouraged to take these songs to the
next level -- offer
them as a full-blown, shrink-wrapped CD, available to "quirky
cover song" fans.
However, though I went the extra mile trying to conceive of unique
ways to present
these tunes, I wrote nary a note of this music. In order to
legally (and ethically)
pull this off, I'd have to find out who to pay, credit, and get
With none of my friends involved in publishing or entertainment
law, I hadn't
the foggiest idea how to go about this.
Enter the Harry Fox Agency, or HFA. After scouring
for "ballpark" legal advice, it became clear that the HFA was the
of all things relating to obtaining the rights to record and sell copies of
songs written by other parties. (NOTE: Outside the US,
Rights agencies exist for Canada, the UK, and Europe (and elsewhere).
After locating the Harry Fox Agency's home page, I discovered that the HFA (among other things) specializes in the following
Mechanical Licensing: The licensing of copyrighted musical
compositions for use on CDs, records, tapes, and certain digital
Digital Licensing: The licensing of copyrighted musical
compositions in digital
configurations, including but not limited to, full downloads,
on-demand streaming and CD burning.
Given that I was going the "CD" route, playing someone else's
"copyrighted musical composition," this confirmed some of the
things that I'd
already read online. I needed a Mechanical License! On the left side of the HFA homepage read the words:
an HFA Limited Quantity License (less than 2,500 units), use
Since I was planning on manufacturing 1,000 units, the most common number for an "indie" CD run, HFA's www.songfile.com
sounded right for my purposes. On Songfile, the steps to follow were simple:
I clicked the
"Song Search" link (note their browser requirements), entered the
title of one
of the songs I covered, and searched their database for the types
available. Upon selecting the "mechanical license" option, I was
asked the following
multiple-choice questions (my answers appear in parentheses):
1) How many recordings will you make? (2500
copies or less). HFA's license fee minimum is 500 units.
2) Manufactured in what country? (Within the U.S.)
3) Distributed in what country? (Within the U.S.)
4) Which type of Organization do you represent? (Individual)
Based on the length of each song and the number of
units you plan
to sell, Songfile then computes a fee based upon the
royalty rate, which is the money collected for each sale of your
that goes directly to the songwriter and publisher of each song. Currently
(January 1, 2004 to December 31, 2005), the "statutory mechanical
is 8.50 cents for songs 5 minutes or less or 1.65 cents per minute or fraction thereof for songs over 5 minutes. At that rate, for the purpose of my CD, covering a single
song under five
minutes long and selling 1,000 copies of it added up to an $85 fee.
Since I was going to be licensing 10 songs, I'd have to pay at least
$850! Two of
the songs I recorded were actually over six minutes. At the
current rate, that
calculates to $115 each. To say the least, that's a pretty
investment! (On a per song basis, this fee can be paid online by
otherwise, you have to do the entire process manually by filling
HFA's mechanical licensing form and mailing it in to the HFA with a check.
It's also worth noting that, at first, I thought
this "fee" was
merely the cost of obtaining the license. I shuddered at the thought
of having to pay this, PLUS royalties at a rate of about eight
cents per song, to
say nothing of my CD's photography, art design, manufacturing
costs! To my relief,
a few months later, a friend informed me that the fee I paid was
just an "advance"
on the royalty for 1,000 copies of each song sold; the license
itself was apparently
only $10. According to the fine print, you're "charged a $10.00
processing fee per license, which will be added to the license
amount and processed
as a single charge to your account."
Back to Harry Fox... After shelling out for several songs (you
provide a ballpark release date and other details, submit your
credit card info
online, then receive a license via e-mail in a matter of hours or
days), I entered
the name of a Jimi Hendrix song I wanted to license. After answering all the
same questions in the exact same manner as my previous song selections, the
following words appeared before me on my monitor (in red, no doubt
This song is not available for mechanical
Noooooo!!! In a panic, I then entered the details of a Billy Joel
song I recorded.
Ditto: "This song is not available for mechanical licensing."
As far as I knew, the Harry Fox Agency held the
rights to all
the songs legally available for the "covers" treatment; anything else was a
no go. I figured this was enough to all but doom my little project
For starters, those two songs demonstrated an aspect of my playing
that the other eight songs didn't. Further, I just didn't think it'd be cool
to put out an "eight-song" covers CD, let alone one without my man Jimi
being represented! Lastly, since this CD was already over three
years old, it
didn't feel right to do two "new" songs and slap them on at the
end of the collection.
To my mind, that would ruin the idea of me releasing an "accidental" album,
if you will.
But then I discovered an interesting legal fact:
Once a song has
been commercially released by an artist, that artist's song may be
and released by anyone who chooses to do so. This holds
that the melody/lyric isn't substantially altered in the "cover"
that they pay proper fees/royalties directly to the song's copyright holder.
On the flip side, if you release a disc with cover songs on it, then
try to obtain proper licensing after the fact, you're no longer
possibly subject to penalties/prosecution for copyright infringement! All I
needed to do was investigate who owned the publishing rights to
those Jimi Hendrix
and Billy Joel songs. This information (including each publisher's address)
was readily available through the following Performance Rights
Later, I found that the above "publisher's search"
be sped up considerably by going through the Music Publishers Association's
After obtaining both publishers' contact info, I was left with
that resounding "Now what?" feeling. Again, the ol' Internet paid
off. I found
I needed to send to each publisher what's referred to as a
"Notice of Intention
to Obtain Compulsory License for Making and Distributing Sound
After more cyber searching, I finally found out what the heck that
was at the overwhelmingly incomprehensible (to my neophyte self) U.S.Copyright Office website. Reading that document was almost
enough to make me toss in the towel (and my cookies). But then, much to my satisfaction, I
came across this totally "pre-fab" letter letter, designed by the friendly webmasters at Bignoize, a "fill-in-the-blanks"
style for submission to artists' publishers. This letter
appeared to adhere
to the specifications prescribed by the US Copyright Office.
From here, the Billy Joel licensing process went off without a
hitch. I sent in the above letter (certified mail, return
receipt). When they received it, they asked me via e-mail to specify the number of copies I intended to sell (information omitted from the "pre-fab" letter I used). They then
sent a written agreement for my signature, additionally asking for an $85 check
covering the sum of advance royalties paid on 1,000 units. (My research revealed that you
could try to negotiate a lower royalty rate with each publisher. However, I
happily agreed to pay the "compulsory" or "standard
mandatory rate. This agreement also provided me with the exact wording for the
credit" I needed to include in my CD's liner notes, and stipulated that the
publisher receive two copies of the disc "as released."
Individual writer/publisher credits for every song you cover must be included in
your CD's liner notes. Upon execution of the agreement, they granted
me the license
and quickly sent me a hard copy for my records.
A search for Hendrix's publishing was another matter entirely.
Depending on which performance rights organization I searched through, both
"Bella Godiva Music" and/or "Experience Hendrix LLC" administered Hendrix's
publishing rights. To make a long story short, Experience Hendrix
LLC was the
correct one. I sent my same "pre-fab" letter to their P.O. Box
(the only indicated
address); it came back three weeks later as "undeliverable to
nobody signed for it. (Again, I sent it certified w/return
receipt, a bad
idea for P.O. boxes, apparently.) On a deadline by now (I was
looking to release
this disc in a couple months), I located a phone number for
LLC and got the ball rolling that way. They requested I e-mail
their Music Publishing
& Licensing contact, asking them to e-mail me back (as an
downloadable version of the form I need to submit in order to
obtain a mechanical
license for the making and distribution of 1000 CDs containing the track
of Sand"." I was also informed that they needed to approve a copy
of my "cover
version" first, before they could grant me a mechanical license. Fine by me!
I sent them a CD-R copy of my almost-final mix, with their filled-out e-mail
form (replete with Hendrix logo!), and a few weeks later, finally
got the official
So there you have it: Two of three possible paths for legally
covering another artist's song. In the end, if you go direct to
you'll do away with the HFA's $10 filing fee. Personally, given the time it
took "going direct" (to say nothing of the anxiety it caused), I'd
that $10 any day of the week! You'll just need to weigh your own
vs. money" options.
So what about licensing method #3? Well, if you've
reasonable means and can't locate the copyright holder(s) for the
covered, you can file the same Notice of Intention to Obtain a Compulsory
License with the Library of Congress, Copyright Office,
Each song needs to be filed separately, and there's a $12 filing
fee (per song).
The Library of Congress will establish to whom royalties are paid
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 the US Copyright Office following
these specifications, as prescribed by the US Copyright
office. In the event
you have any questions, the Library of Congress can provide you
instructions concerning this form. Ask for the Copyright Office
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
Licensing Division, LM-458
101 Independence Avenue, S.E.
Washington, D.C. 20557-6400
Meanwhile, here's sample of a "pre-fab" Notice of Intention to Obtain a
License I found online.
Finally, be aware that being granted a mechanical license does
not mean you can reprint that song's lyrics in your CD's sleeve.
You must clear
these rights through the publisher directly. And
samples and audio excerpts from the artist's original master recording must be
for this, you must obtain a "Master Recording License" directly from the
record company that owns the master to the recording. I believe
Harry Fox used
to offer this type of license, but has since discontinued doing
sale of MP3 downloads requires a separate "Digital License."
In the end, all the footwork I had to engage in (and anxiety I
had to endure) to legally take this "stocking stuffer" to the next level was
well worth the effort. I now have a CD of songs I really like, performances
I'm proud of, and a nice memento of a personal "place in time"
that I can proudly
distribute. I hope you some day consider doing the same. Good luck!
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