[Harp-L] How to Legally Sell Downloads of Cover Songs



OF GOOD GENERAL INTEREST TO ALL.



How to Legally Sell Downloads of Cover Songs
	From: 	  cdbaby@xxxxxxxxxx
	Subject: 	Re: harmonica dreams
	Date: 	March 2, 2005 4:19:14 PM EST
	To: 	  randy@xxxxxxxxxxxxxxx



What if I have cover songs on my album?
It's easier than you think. You have permission, by law! You just need to NOTIFY the publisher, as described here.:


How to Legally Sell Downloads of Cover Songs

Please note that the below is not official legal advice, we are not your lawyers, and you should always contact your attorney before entering into any contract such as a license.

If you have recorded a cover version of someone else's song, and you plan to make that recording available over the Internet, the following information applies to you.

You must follow these steps BEFORE you make your recording available for distribution to the public!

If you record a cover version of a song, (meaning your performance of a song that has been released in the U.S. with consent of the copyright owner), you are entitled by law to release your recording commercially, and the owner of the copyright to the song cannot prevent you from doing so.

The Copyright Act provides for what is called a "Compulsory License", which means that if you follow the steps set forth by statute, you can distribute your recording of that song on a CD or over the internet.

The following details the procedure for individuals to obtain a compulsory license to digitally distribute cover songs over the Internet to end users in the United States.
Identify the Copyright Owner - the publisher


The first step is to identify the owner(s) of the copyright to the song. The publisher.

The easiest way to do this is to search the song writer/publisher databases, here:
BMI (bmi.com)
ASCAP (ascap.com)
SESAC (sesac.com)
Harry Fox (songfile.com)
U.S. Copyright Office (copyright.gov)
songfile.com


Keep in mind that the owner of these rights is typically a publisher, and that the owner of the rights in the song is not the same as the owner of the rights to any particular recording of the song. In other words, Record Labels are almost never the owners of the copyright to the musical composition - they typically own only sound recordings. You should be looking for the name of a publisher (or in some cases an individual).

Be careful to identify the exact song you want, as there are many songs with the same names. If you cannot find the owner through these websites, search the records of the Copyright Office online.

If you cannot find the copyright holder(s) after a thorough search, you can send the letter to the Copyright Office, along with a small filing fee, currently $12.00. See the Copyright Office website for the proper address and current filing fees if you are going to be sending the letter of intent to them.

Instructions on how to do that are on "Circular 73" from the U.S. Copyright Office, on a PDF file, here: copyright.gov/circs/circ73.pdf. WE STRONGLY RECOMMEND DOWNLOADING AND READING THIS FILE, because it carries the essence of this entire article.
Send a Letter of Intent - EXACTLY like this:


You must send one letter for each song for which you seek a compulsory license 30 days before you begin distribution of your downloads. The letter must be sent by registered or certified mail and contain the following:
a clear subject line/title that says "Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords"
your full legal name
all fictitious/assumed names (stage name, band name) used
the names of each individual owning a 25% interest or more in the distribution of the song (band members, if you split your sales income)
your fiscal year (usually January 1st - December 31st)
your full physical address - P.O. boxes are unacceptable, unless that is the only option for addresses in your geographic region
the title of the song
name(s) of the author(s) of that song
the type of configuration expecting to be made (a music file distributed over the Internet is called a "Digital Phonorecord Delivery" (DPD))
the expected first date of distribution
the name of the performer/band doing the cover
your signature.


If there is more than one publisher listed, sending a letter to one of them is sufficient for the compulsory mechanical license; however, if one or more of the copyright holders is not from the United States, it is best to send the notice to all copyright holders.
Send Royalty Statements and Pay Royalties


Once you begin distributing the song over the Internet, you must send monthly statements of royalties on or before the 20th of each month, and pay the royalties.

The monthly statement must be sent by registered or certified mail and include:
a clear title that says "Monthly Statement of Account Under Compulsory License for Making and Distributing Phonorecords"
the period (month and year) covered by the statement
your full legal name
all fictitious/assumed names (stage name, band name) used
the names of each individual owning a 25% interest or more in the distribution of the song (band members, if you split your sales income)
your full physical address - P.O. boxes are unacceptable, unless that is the only option for addresses in your geographic region
the title of the song
name(s) of the author(s) of that song
the name of the performer/band doing the cover
the playing time (length) of your recording of the song (minutes:seconds)
the number of DPDs made, i.e. how many times your recording was downloaded
the number of DPDs that were never delivered due to a failed transmission
the number of DPDs that were retransmitted in order to complete/replace an incomplete/failed delivery
the total royalty payable (number of total DPDs, not counting ones never delivered multiplied by the statutory royalty rate (see below))
the following statement: "I certify that I have examined this Monthly Statement of Account and that all statements of fact contained herein are true, complete, and correct to the best of my knowledge, information, and belief, and are made in good faith"
your signature


You must also send an Annual Statement of Account at the end of each calendar year, which is virtually identical in content to the Monthly Statements, but must be certified by a licensed Certified Public Accountant (CPA).
Statutory Royalty Rates


The current (2004) statutory rate for royalties is 8.5¢ for every copy sold if the playing time for the song is under five minutes.

If the playing time for the song is longer than five minutes, the rate is 1.65¢ per minute, rounding up to the next minute.
under 5 minutes = 8.5¢ per copy
5 to 6 minutes = 9.9¢ per copy (6 minutes x 1.65¢)
6 to 7 minutes = 11.55¢ per copy (7 minutes x 1.65¢)
7 to 8 minutes = 13.2¢ per copy (8 minutes x 1.65¢)
etc.


On January 1, 2006, the rates go up to 9¢ per song or 1.75¢ per minute. (As described above.)

The Copyright Office can always keeps the most up to date information concerning statutory royalty rates at this link: http://www.copyright.gov/carp/m200a.html
IMPORTANT Notes:


The publisher may tell you to that they don't deal with compulsories, and that you should contact the Harry Fox Agency. However, it may be easier for some artists to obtain compulsory licenses directly from the publisher.

Remember the law is on your side. You are entitled to a compulsory license by law. You have permission - (a compulsory license) - as soon as you send the notice, described above, to the proper publisher.

As long as your notice complies with Copyright Section 115, (described above), the publisher need do nothing other than receive the royalty payments. You don't even need to wait for their reply.
Other Notes:


You may be able to negotiate a better deal for yourself, either with lower royalty rates or less frequent statements of account. If terms are negotiated which deviate from the the standard Section 115 then a mechanical license will be issued by the publisher or HFA.

If you wish to distribute physical copies (e.g., CDs) of a cover song, you must obtain a similar compulsory license, available for most popular songs through the Harry Fox Agency at harryfox.com. If you plan on distributing between 500 and 2500 physical copies, you can obtain a compulsory license through the Harry Fox Agency online at songfile.com.

For more information on compulsory licenses for all forms of distribution, please refer to the Copyright Office's web site, at copyright.gov, and contact your attorney.

Helpful publications available through the Copyright Office include Circular 73 (Compulsory License for Making and Distributing Phonographs), Circular 75 (The Licensing Division of the Copyright Office), and M-200 (Checklists under Section 115 of Title 17).

If you have been distributing a cover song without a compulsory license or an agreement with the copyright owner, you are ineligible to obtain a compulsory license for that recording (!), and you may be subject to civil and/or criminal penalties for copyright infringement.

Be careful to follow the steps exactly as described above, in order to be legal.
Download and print/save these files:
How to Investigate the Copyright Status of a Work
Compulsory License For Making and Distributing Phonorecords
Notice of intention to obtain a compulsory license
Royalties and statements of account under compulsory license
Checklists of Required Information
Mechanical Copyright Royalty Rates


These and more available at the U.S. Copyright Office website: copyright.gov
Experts that can help you:


Since this part of music is business and law, (not art), nobody listed below can help you for free, but all have offered their expert services at musician-friendly rates to help you with this topic.
C. Christopher Clark, Esq.
Shumaker, Loop & Kendrick, LLP
128 S. Tryon Street, Suite 1800
Charlotte, North Carolina 28202
(704) 945-2152
cclark@xxxxxxxxxxx
Richard D. Rose - Attorney
9 Music Square South, 3700
Nashville, TN 37203
615-330-7673
richard@xxxxxxxxxxxxxxxxx
Joyce Dollinger
Dollinger, Gonski & Grossman
One Old Country Road, Suite 102
P.O. Box 9010
Carle Place, New York 11514-9010
(516)747-1010
jsydnee@xxxxxxx




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