Music copyright

[Chamber005]

So, we've had some discusssions on these boards before regarding fair use, copyright, etc. regarding music being posted online, or using jukeboxes on our own sites...

I was doing some general research today and was interested reading about what's called a "Mechanical License". This license effectively gives you the permission to distribute a "cover" of a song without having to go through all the ASCAP nonsense (like when you're trying to grab the original).

I took this information and skated over to MySpace to see how many artists over there are dishing some good covers of songs I wanted for a short film I'm working on. Turns out, there are some covers of the songs I wanted for my short that sound nearly identical to the original (and some covers that are actually "better").

So, for instance, if you want a Radiohead song in your short, but can't afford Radiohead -- it's a nice alternative. And if you have enough cool covers of songs in your short or indie feature, you could even go so far as to slap a soundtrack of said covers on a CD and put it up for sale with the DVD of your flick, so long as your dishing royalties correctly.

Just another low-budgey idea for the arsenal.

 

[Chamber005]

So, we've had some discusssions on these boards before regarding fair use, copyright, etc. regarding music being posted online, or using jukeboxes on our own sites...

I was doing some general research today and was interested reading about what's called a "Mechanical License". This license effectively gives you the permission to distribute a "cover" of a song without having to go through all the ASCAP nonsense (like when you're trying to grab the original).

I took this information and skated over to MySpace to see how many artists over there are dishing some good covers of songs I wanted for a short film I'm working on. Turns out, there are some covers of the songs I wanted for my short that sound nearly identical to the original (and some covers that are actually "better").

So, for instance, if you want a Radiohead song in your short, but can't afford Radiohead -- it's a nice alternative. And if you have enough cool covers of songs in your short or indie feature, you could even go so far as to slap a soundtrack of said covers on a CD and put it up for sale with the DVD of your flick, so long as your dishing royalties correctly.

Just another low-budgey idea for the arsenal.

And what's even more interesting is that if John Doe has a mechanical license and performs a song and then gives permission to you, the producer, to use his song in a film -- the producer might actually be far enough removed where he wouldn't actually have to even hold a mechanical licese himself, and would in that case only pay royalties to John Doe (who would then have to pay royalties to the song writer).

Hm.

 

[Steve House]

Sorry, you theory doesn't hold water. The mechanical license allows you to make a cover of the music, that's true. But the license is for a phonorecording only. And while the person making the cover recording does own the copyright TO THE RECORDING, the copyright to the words and melody, the music itself, remains with the original copyright owner.

There is a compulsary mechanical license if you want to release a cover but mechanicals have little impact on music used in film or video productions. When you use someone's recording of a piece of music in your video, you must deal with two separate copyrights and you must obtain a license for each. You need a sync license from the owner of the music's copyright - the copyright on the words and the structure of the musical notes - in order to use the musical composition itself AND you must obtain a master use license to use the specific recording of the composition that you wish to incorporate into your production. The mechanical the cover artist has obtained DOES NOT give him the ability to license others to use the music, all he can grant you is the master use license to his recording, NOT the sync license. So using a cover might simplify obtaining the master use license but you still must separately obtain the sync license from the original music's copyright owner(s). For that matter, once you obtain the sync license you are authorized to make what is effectively your own cover, making a fresh recording of the music as performed by yourself or people you hire to incorporate into your film/video. If you record it yourself you don't need to worry about any master use licenses at all since you're not using a pre-existing recording. Nor do you need to obtain a mechanical since you're not releasing it as a musical phonorecording per se on tape, CD, or vinyl. But in all cases, whether the source of the recording is a mainstream release by a well known artist, a cover release by an unknown, or a recording you make yourself from scratch, you always must obtain the sync license from the composers and publishers of the music or the entity to whom the copyright has been transferred (the estate of a deceased songwriter or Time-Warner if you wish to have your characters sing "Happy Birthday", for examples). The only exception is if you or someone you hire writes a fresh musical composition so you become the copyright owner.

 

[Chamber005]

Sorry, you theory doesn't hold water. The mechanical license allows you to make a cover of the music, that's true. But the license is for a phonorecording only. And while the person making the cover recording does own the copyright TO THE RECORDING, the copyright to the words and melody, the music itself, remains with the original copyright owner.

There is a compulsary mechanical license if you want to release a cover but mechanicals have little impact on music used in film or video productions. When you use someone's recording of a piece of music in your video, you must deal with two separate copyrights and you must obtain a license for each. You need a sync license from the owner of the music's copyright - the copyright on the words and the structure of the musical notes - in order to use the musical composition itself AND you must obtain a master use license to use the specific recording of the composition that you wish to incorporate into your production. The mechanical the cover artist has obtained DOES NOT give him the ability to license others to use the music, all he can grant you is the master use license to his recording, NOT the sync license. So using a cover might simplify obtaining the master use license but you still must separately obtain the sync license from the original music's copyright owner(s). For that matter, once you obtain the sync license you are authorized to make what is effectively your own cover, making a fresh recording of the music as performed by yourself or people you hire to incorporate into your film/video. If you record it yourself you don't need to worry about any master use licenses at all since you're not using a pre-existing recording. Nor do you need to obtain a mechanical since you're not releasing it as a musical phonorecording per se on tape, CD, or vinyl. But in all cases, whether the source of the recording is a mainstream release by a well known artist, a cover release by an unknown, or a recording you make yourself from scratch, you always must obtain the sync license from the composers and publishers of the music or the entity to whom the copyright has been transferred (the estate of a deceased songwriter or Time-Warner if you wish to have your characters sing "Happy Birthday", for examples). The only exception is if you or someone you hire writes a fresh musical composition so you become the copyright owner.

Man, such a pain in the ass. Makes you want to not even use an artist's music -- there's just too much red tape. I tried going through ASCAP for this one song? But if you're doing a web short for zero profit and on a zero budget, they pretty much wipe their ass with your request.

And what's worse is that even if you get direct permission from the artist who created the music, if they're handled by ASCAP (and most everyone is) you can STILL get in legal trouble (or, more to the point, your flick can be taken down).

I dunno. It does seem like using the covers is slightly easier than using originals, but you still have to obtain the synch license...

And what's worse is that half the time when we're doing things to show on the internet, we don't know if there may at some point be a deman for a DVD version of these shorts, or if we're encouraged to enter them into a film festival. As low budgey filmmakers we would then have to go back and pay more money and secure further rights to move into that arena...

You'd think ASCAP and artists would find a way to make it easier for people to use their music and just pay them royalties, ya know? Instead of imposing this whole notion of "requesting" the use of the music. Just bizarre. If you're an artist and you put something in the public domain, you should always get paid any royalties when your art is used, but it really should be up to the public when and how it is used.

 

[grinner]

Red tape?
It's as easy as a phone call, a needledrop sheet and a check.

 

[Steve House]

You keep talking about ASCAP nad maybe the reason you're finding it so frustrating is that you're going to the wrong place for your licenses. For the purposes of using music in your film or video ASCAP has little if anything to do with it. ASCAP is a perfomance rights organization. If you broadcast a song on the radio, post it for people to listen to on the internet, play it in a club, use it for music-on-hold or as background music in your grocery store, that is a public performance and you pay royalties to the copyright owners through ASCAP (or BMI or SESAC or SOCAN). They then take your royalty payment and divvy it up between the various copyright owners such as the music publisher, composers, etc. But when you use a piece of music in a soundtrack you're not talking about a performance, you're talking about creating a new copyrightable work that uses the copyrighted fruits of someone elses labour as a material part of the new whole. That puts it into a whole new ballgame with different players and different rules.

You keep talking about the "artist" but there's a whole lot of other people besides the band or recording artist involved in getting the music you hear from the original idea through the entire process to your ears and they too deserve to be paid for their efforts. The band or vocal artist is only the tip of the iceberg. In fact, the money you pay to ASCAP or the money you pay for a sync license doesn't even go to the "artist" most of the time - it goes to the people that actually created the music. Unless the artist is performing their own original composition, someone else owns the copyright to the song. If you look at the detailed credits for popular music you will find that often as not the recording artist is NOT the composer. How does your scheme get those people paid?

There's also the issue of the copyright owner's ability to control exactly how their property is used - if I was a composer I certainly wouldn't want my music to be used in a film promoting neo-nazi political idealogy, for example, and I think it is my right to retain the power to say "no" for any use such as that as I may see fit. In your scheme I wouldn't have that control.

 

[Chamber005]

You keep talking about ASCAP. For the purposes of using music in your film or video they have little if anything to do with it. ASCAP is a perfomance rights organization. If you broadcast a song on the radio, post it for people to listen to on the internet, play it in a club, use it for music-on-hold or as background music in your grocery store, that is a public performance and you pay royalties to the copyright owners through ASCAP (or BMI or SESAC or SOCAN). They then take your royalty payment and divvy it up between the various copyright owners such as the music publisher, composers, etc. But when you use a piece of music in a soundtrack you're not talking about a performance, you're talking about creating a new copyrightable work that uses the copyrighted fruits of someone elses labour as a material part of the new whole. That puts it into a whole new ballgame with different players and different rules.

You keep talking about the "artist" but there's a whole lot of other people besides the band or recording artist involved in getting the music you hear from the original idea through the entire process to your ears and they too deserve to be paid for their efforts. The band or vocal artist is only the tip of the iceberg. In fact, the money you pay to ASCAP or the money you pay for a sync license doesn't even go to the "artist" most of the time - it goes to the people that actually created the music. Unless the artist is performing their own original composition, someone else owns the copyright to the song. If you look at the detailed credits for popular music you will find that often as not the recording artist is NOT the composer. How does your scheme get those people paid?

There's also the issue of the copyright owner's ability to control exactly how their property is used - if I was a composer I certainly wouldn't want my music to be used in a film promoting neo-nazi political idealogy, for example, and I think it is my right to retain the power to say "no" for any use such as that as I may see fit. In your scheme I wouldn't have that control.

But that's the entire essence of art -- to be viewed and used as the audience sees fit. We may have ideas or wishes of how we feel our art should be viewed, but it isn't up to us -- because someday we'll be dead! Trying to limit format and presentation of your art is ludicrous and a vane effort. If I create a short film, the film should be able to be viewed where ever and whenever an audience sees fit. So long as the people who created the film (on various tiers) get residuals from said presentation, no one involved in the creation of that film should have a say as to where and how it is viewed, other than possible suggestions. That is what it means to be an artist -- you're letting go of something you've created and are giving it to the people.

In regarsd to ASCAP, I wasn't aware that you didn't have to deal with them if you wanted to use copywritten music in a film. If you're not dealing with ASCAP then who are we supposed to be contacting to use a song in our film, because, as you said, there is no one person who typically owns full copywright to a given composition?

 

[Chamber005]

Red tape?
It's as easy as a phone call, a needledrop sheet and a check.

This isn't exactly enlightening. Who are you calling? Who are you writing this check to? When I dealt with ASCAP this wasn't the case.

You can't ask the artist's permission (assuming you can even get them on the phone), and you can't only ask the permission of their representative as there may be several people who own some copyright over the music (hence ASCAP's 3rd party existence).

And what amount are you writing this check for? ASCAP clearly gives the person requesting the song power over how much they're paying (or are willing to pay) for any given piece of music.

Please detail the process you went through when securing the rights to use a specific song in your film, as you've obviously done it before and I must be going about it the wrong way.

Thanks

 

[Steve House]

But that's the entire essence of art -- to be viewed and used as the audience sees fit. We may have ideas or wishes of how we feel our art should be viewed, but it isn't up to us -- because someday we'll be dead! Trying to limit format and presentation of your art is ludicrous and a vane effort. If I create a short film, the film should be able to be viewed where ever and whenever an audience sees fit. So long as the people who created the film (on various tiers) get residuals from said presentation, no one involved in the creation of that film should have a say as to where and how it is viewed, other than possible suggestions. That is what it means to be an artist -- you're letting go of something you've created and are giving it to the people.

In regarsd to ASCAP, I wasn't aware that you didn't have to deal with them if you wanted to use copywritten music in a film. If you're not dealing with ASCAP then who are we supposed to be contacting to use a song in our film, because, as you said, there is no one person who typically owns full copywright to a given composition?

But you are entirled to the full benefit of any use of your labours.

For sync rights to a composition, you contact the publisher. For master use rights to an existing recording, you contact the record label. But because there can be multiple owners, from a practical standpoint the best route is to work with a music rights clearance agency who make it their business to know who to contact. There are a number around and they charge a reasonable fee for their services. A google of Music Clearance Services or Music Rights Clearance will turn up a bunch.

 

[Chamber005]

But you are entirled to the full benefit of any use of your labours.

For sync rights to a composition, you contact the publisher. For master use rights to an existing recording, you contact the record label. But because there can be multiple owners, from a practical standpoint the best route is to work with a music rights clearance agency who make it their business to know who to contact. There are a number around and they charge a reasonable fee for their services. A google of Music Clearance Services or Music Rights Clearance will turn up a bunch.

Solid info sir, thanks. And I COMPLETELY agree that anyone and everyone involved in the creation of any entity deserves to be compensated via residuals and royalties. I still haven't gotten over how bad the Three Stooges got screwed over and died in poverty...

So, from what you're saying, I've no need to deal with ASCAP at all, correct? I can simply find one of these agencies, pay them a fee, and then they'll go about securing the rights for me? Then, I assume, is there an additional fee that the copyright holder charges, or do I simply have to pay them royalties (if there are any)?

 

[Blaine]

Here's a quick diy for getting music clearance.

http://www.clearance.com/get_yourself.htm

 

[Steve House]

Solid info sir, thanks. And I COMPLETELY agree that anyone and everyone involved in the creation of any entity deserves to be compensated via residuals and royalties. I still haven't gotten over how bad the Three Stooges got screwed over and died in poverty...

So, from what you're saying, I've no need to deal with ASCAP at all, correct? I can simply find one of these agencies, pay them a fee, and then they'll go about securing the rights for me? Then, I assume, is there an additional fee that the copyright holder charges, or do I simply have to pay them royalties (if there are any)?

Yep, they arrange the rights for you and you pay the copyright owner his fee and the clearance agency his service charge for arranging it for you. In practice I think you usually write just one cheque. Where ASCAP gets involved is if your video is sold for broadcast you provide the station or network with a cue sheet listing all the music used, where and how much, the copyright holders, and their afffiliation (ASCAP, BMI, etc). The station's traffic department reports the usage with such info as air date etc and ASCAP disburses royalties out to the rights holders out of the station's blanket license fees.

 

[grinner]

This isn't exactly enlightening. Who are you calling? Who are you writing this check to? When I dealt with ASCAP this wasn't the case.

You can't ask the artist's permission (assuming you can even get them on the phone), and you can't only ask the permission of their representative as there may be several people who own some copyright over the music (hence ASCAP's 3rd party existence).

And what amount are you writing this check for? ASCAP clearly gives the person requesting the song power over how much they're paying (or are willing to pay) for any given piece of music.

Please detail the process you went through when securing the rights to use a specific song in your film, as you've obviously done it before and I must be going about it the wrong way.

Thanks

I've always gone directly to the label. No issues that way. No red tape. I spent a long part of my career making tour spots for every band from Black Sabbath to Madonna and it really is easy to get the right person on the phone just by asking the receptionist who answers the phone.
Knowing this, I've been able to use some pretty well known tunage in labors of love I hoped would blossom into something bigger without so much as even writing a check... just getting proper permission. The bottom line is they are in the promotion business.
In this entire show pilot, I spent exactly nothing:
http://grinnerhester.com/styx.html
I just gave them final approval.

 

[Chamber005]

Super informative guys! And it does sound like the original idea I had of using bands that have covered certain songs is the CHEAPEST way to go (barring some circumstance where everyone is OK with not getting paid anything). I may try, Grinner, what you talked about -- but from what I've gathered here, and after further research, it sounds like we do just go to the record label and deal with things through them if we want to have a band cover a song and use it in a video, as most music companies have dedicated licensing departments for the very purpose of licensing songs for use in films, TV and commercials.

Thanks!

 

[Steve House]

Super informative guys! And it does sound like the original idea I had of using bands that have covered certain songs is the CHEAPEST way to go (barring some circumstance where everyone is OK with not getting paid anything). I may try, Grinner, what you talked about -- but from what I've gathered here, and after further research, it sounds like we do just go to the record label and deal with things through them if we want to have a band cover a song and use it in a video, as most music companies have dedicated licensing departments for the very purpose of licensing songs for use in films, TV and commercials.

Thanks!

It depends on who composed the song. A "cover" is a recording of a copyrighted song that has already been released by another artst. But the original copyright on the words and musical notes is still in effect for the cover just as it is for the original and you still have license it to use it in your production. For example, let's say you want to use "My Heart Will Go On" from Titanic. That was written by James Horner (music) and Wilbur H Jennings (lyrics), published by Sony ATV Harmony. That's who you get the sync license from. Now if you want to record it yourself, you're set. But if you want to use Celine Dion's recording from the movie soundtrack, you go to Fox and Celine's label to get the master use license for the recording of that specific artist's performance. If you want to use the cover recorded by The Carolina Opry, you go to whoever their label is to get the master use license for THAT performance recording. And there are other covers out there as well. To use any of them you contact their label. But in all cases, you still get the sync license from Sony since no matter how many covers have been done by no matter how many artists, Sony still owns the copyright to the words and music and you have to have their license to use ANYONE's version of it. True, Carolina Opry's master license is probably going to be a lot cheaper than Celine Dion's but you still have to deal with Sony for the sync license and they're going to charge you the same regardless of whose cover you use.

 

[txsbluesguy]

there is a reason the richest guys in Hollywood are the IP attorneys

mechanical rights give you the right to reproduce and sell the reproduction ....

here is a break down of the common rights involved with a song
there are rights to use the music - i.e. the composition - how the notes are arranged
there are rights to use the lyrics - the words
there are rights for the performance - the artist who actually sang and played the music
there are rights to the recording - the record companies usually own this

good luck tracking all the agents involved in the above list and negotiating a "fair" price

if you do a cover you will still be responsible for the first two sets of rights... once you have your cover then you're responsible for any or all of the following four (the fourth probably wouldn't count in this case) -

please note number three is separate from one and two. it for the most part means you pay just to edit it



here is a brief explanation
Are there different types of music royalties?

There are four (4) different types of royalties, each derived from a separate and distinct copyright. The four potential sources of royalty revenue in the music recording and publishing industry are:

(1) Mechanical royalties: paid from record companies for record sold based on the exclusive to reproduce and distribute copyrighted works.

(2) Public performance royalties: paid by music users for songs in the operation of their businesses and broadcasts based on the exclusive right to perform publicly copyrighted works.

(3) Synchronization fees: paid by music users for synchronizing music with their visual images based on the exclusive right to reproduce and distribute copyrighted works and to prepare derivative works of copyrighted material.

(4) Print music income: paid by music printers for sheet music and folios based on the exclusive right to distribute copies of copyrighted material.

taken from:
http://law.freeadvice.com/intellectual_property/music_law/types_music_royalties.htm


in a nutshell there is no easy magic bullet or work around ------ get over it
pay the royalties to all those involved or hire a someone to make the music for you or get a music library

 

[Steve House]

Good summary, TexasBlues. We might add, a common source of confusion seems to be the usually mistaken belief that the artist who makes the recording owns the rights to the music and is the go-to person for permission to use it. In fact, the artist usually doesn't own any rights at all. IF they wrote the music and lyrics and self published them, then they would be able to grant sync rights. But if they just recorded someone elses composition, as is the case with most popular music, then they're not the right one to ask. Likewise, unless they're releasing their music under their own label, they don't own the master use rights to the recording either. Again, they're not the ones to ask.

 

[Chamber005]

I'm going to be going through the process this summer. Maybe I'll detail exactly who I spoke with in regards to what songs, how much it all cost, etc.

Thanks!