Music Publishing-Questions & Answers:
By John Anello Jr.
Juris Doctor / Intellectual Property / Media & Entertainment
Q: I want to record my own composition. How can I best protect it?
A: File a copyright application with the Library of Congress electronically for $35, or with a written or CD audio copy of your song and a check made out to Library of Congress for $85.00. The form formally called a PA form (Performance Art) is now a CO form, and can be downloaded from the Copyright Office website on the internet, file it on line, or you can call the Library of Congress in Washington D.C. and they will send them to you. Another kind of copyright form, which is used to record the actual recording of the composition onto CD is called an SR (Sound Recording) form. To file this, send in a SR form with two (2) copies of your recordings and a check to the Library of Congress for $45.00.
Q: I want to record a CD and want to sing or perform a famous artist’s composition. Do I need permission from the artist or composer? How do I get to use it?
A: You do not need express permission from the artist. Once a song is recorded and released by the artist to the public, anyone else may record it.
BUT IT IS NOT USED FOR FREE.
You must request what is called a MECHANICAL (or Compulsory) LICENSE from the publisher, or from a clearance agency that will get the license for you. You must also pay a statutory royalty, which is set up by Congress, and states a maximum a publisher can charge you to use the song. (As of this writing the standard automatic statutory royalty for a popular song is 9.1 cents per CD or cassette/per song, provided the recorded song is 5 minutes or less.)
Example: To use one popular song on your CD-9.1 cents for one song, on 1000 CDs pressed would be $91.00 paid to the publisher.
(9.1 cents per CD x 1000 CDs or cassettes =$91.00)
One such clearing agency is the HARRY FOX AGENCY in NYC. If you request a license from them they will secure one for you if they represent the publisher.
By statutory law, a publisher cannot refuse you a mechanical license for a song that has ALREADY been released, and cannot charge you MORE than the maximum set by Congress as long as the song is 5 minutes or less. (If it is more than five minutes, it takes the statutory rate and adds more per minute. He CAN charge you less, and if you are using several songs from the same publisher, you can try to negotiate a lower rate, though he is not obliged to lower it. Normally the Mechanical Royalty is due to the publisher when you SELL the CD or cassette, not when you make it. However, most publishers will request an “advance” and it is customary in the music industry to give them at least 50% of the total amount due. Some publishers will request the entire amount paid up front. Remember that this only covers your re-recording of someone else’s composition, NOT sampling someone else’s actual recorded music.
Q: What if I want to use a popular song in a video, music video, or film?
A: This kind of license is called a SYNCHRONIZATION LICENSE, and is NOT a statutory “automatic” rate. You must negotiate personally with the publisher, copyright owner, or clearance agency to agree on a fee for use of the music in your visual production.
4) Q: What if I want to use someone else’s song that has NEVER been released before?
A: This is NOT covered by a Mechanical License, and you would usually negotiate an advance for the music. If it is a famous songwriter, the advance could be very high. If it is a new songwriter, you can usually just offer the standard Mechanical License and advance, and they may accept.
Q: What if I want to “sample” or re-record the ACTUAL RECORDED TRACKS of someone’s record, not just perform the composition myself? What if I use only a few seconds or notes?
A: If you take ANY PART of someone’s copyrighted material, especially recordings, and sample them, you must get the permission of the owners of both the composition, and the owner of the recorded tracks. What you will need is a Mechanical License from the publisher, AND a “MASTER RECORD LICENSE” from the record company or owner of the recording. You MAY NOT just sample someone’s recording and use it on yours, and several companies and artists have been sued over this and lost!
Q: What if I use someone else’s music on my CD or recording and a duplication house presses my CD for me. Am I liable, or are they liable for copyright infringement?
A: Usually the duplication company will ask you to sign a legal form indicating that you have secured full rights to all the intellectual property (music) you represent, and have received
all necessary permission and releases. So the fact is that YOU are liable for damages.
John Anello Jr J.D.
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