Show Me Your License

Have you ever considered recording a cover song for a CD project? Did you ever want to use audio that you sampled from somebody else's album or from some
Author:
Publish date:

Have you ever considered recording a cover song for a CD project? Did you ever want to use audio that you sampled from somebody else's album or from some other musical work on one of your recordings? Would you know what to do if someone asked to use your original music in a film or commercial, or to stream on a Web site?

Welcome to the world of music licensing. Although there are dozens of types of music licenses and possible scenarios, understanding a few of the major concepts and how to secure or grant a license helps protect you and your compositions.

Music usually involves two forms. The first is the song, which is the original creation of notes, melodies, and, if applicable, lyrics. The owner of the song is usually the songwriter-lyricist or publisher.

The second form is the sound recording, which is the particular recorded version of a song. The recording artist or record label usually owns the masters for the sound recording. The song and sound recording are independent of each other and require separate licenses.

All Covered Up

If you plan to record a cover song on your album, you must obtain a mechanical license from the songwriter or publisher. A mechanical license gives permission to use a song or composition in an audio-only reproduction (CD, cassette, and so on) or for digital delivery (downloading and streaming).

You can go straight to the publisher for a license, or you can go through the Harry Fox Agency (www.harryfox.com), which acts as an agent for the publishers. The royalty rate you'll have to pay (per unit sold) depends on whether the song has been recorded previously and distributed commercially, and how many records you plan to sell. (If you want to change the lyrics, the melody, or the character of a song, you must also obtain special permission from the copyright owner.)

Congress sets the statutory mechanical rate, which is currently 9.1 cents per unit for songs less than 5 minutes in length (longer songs have higher rates). For a song that has had previous commercial distribution, you will pay no more than 9.1 cents per unit sold. You may even be able to negotiate a lower rate.

Once a song has been distributed commercially, anyone else can license it. If a song's copyright owner declines your request to cover the song on a recording, you can go to the U.S. Copyright Office to get a compulsory mechanical license, which compels the owner to grant you permission. Do that only as a last resort, though, because it could trigger many hassle-filled accounting requirements.

For songs that have never been distributed commercially before, you'll have to pay 9.1 cents or more per unit sold — all negotiable with the copyright owner, who has sole discretion over whether to grant a license. If you are the songwriter, parties will need a mechanical license from you to offer your musical compositions for digital download and streaming or to put your music in a film, a commercial, or a compilation CD.

Put It on Paper

Print licensing encompasses a wide range of printed music (for example, sheet music, orchestra arrangements) and lyrics. Some musicians create customized arrangements of standard songs for various types of bands, symphonies, and ensembles. To sell those arrangements either in hard copy or digitally through a Web site, however, the arranger must first obtain permission from the music publisher.

The first step is contacting the music publisher of the song. You may be told that the print rights have been exclusively assigned to another company known as a print publisher, which specializes in transposing, arranging, and distributing sheet music for all types of instruments and ensembles. If that is the case, you can then ask the print publisher about a license for your arrangements. The print publisher will likely want 50 percent of the retail price of whatever you sell, as well as an advance. Depending on the song, the number of units projected to sell, and the agreements the publisher might have with the composer's heirs, that could cost you thousands of dollars.

A master use license is needed any time someone wants to use a particular sound recording in a compilation CD, a film, a TV or commercial production, or for sampling, digital download, streaming, or in hi-fi ringtones. Whoever owns the master (the record label or the artist) will probably handle the licensing.

There's no fixed rate for a master use license. It depends greatly on what the recording will be used for, how it will be featured (for example, is it a title song in a film?), the recording itself (was it a hit?), the budget of the licensor's project, the projected number of units to sell, and the duration of the use. A master use license could cost anywhere from $500 to $50,000 or more, per track and per project.

Although sampling is common in hip-hop, rap, and dance music, a recent Sixth Circuit Court ruling (Bridgeport Music; Westbound Records vs. Dimension Films) reaffirmed that only the sound-recording copyright owner has the right to sample his or her own work and give permission to others to do the same. You can sample for your own enjoyment, but if you intend to put your resulting work on a record and distribute it, ask yourself if using the sample is necessary. Can you create something in your studio that sounds similar but doesn't violate copyright laws?

If you must have that particular snippet in your recording, then contact both the record label and the publisher about sample licenses; you may need one from each. The license you'd get from the record label is sometimes referred to as a sample clearance license and is a form of master use license. The amount you have to pay will depend on, among other things, how prominently the sample is featured, if it makes up the character of the song, how many times it is used, and what the duration of the sample is.

Screen Gems

Getting your existing music into film, TV, or commercials can be lucrative. Any time music is cued into timed relation with a visual, a synchronization (or synch) license must be secured from you (the songwriter) or your publisher.

The film producer may opt to record a new version of your song for the production. If, however, the producer wants to use a particular recording of your song, then he or she must also obtain a master use license from the owner of that sound recording. You may also have to grant a videogram license to the producer (see the table “Music Licenses at a Glance” for a breakdown of the types of licenses needed).

Licensing music for film, TV, and commercials is completely negotiable, and your fees will depend on the program's production budget, how your music is to be used, and how badly the other party wants it. Unknown songwriters and recording artists might get a flat fee as low as $500 or $1,000 per song and recording. Make sure your song and recording copyrights are registered with the U.S. Copyright Office, and that you have signed on with a performing-rights organization such as ASCAP, BMI, or SESAC. These are important steps in ensuring that you receive any performance royalties, which you're entitled to as the composer when your music is used for broadcast.

Getting a Grasp

The information provided here should give you a basic overview of the types of licenses you need to secure for your music and for music created by others. Remember, if you're in a situation where a music license may be required, it's always best to consult with a good entertainment attorney versed in the nuances of licensing and copyright law. You should also consider using the services of a music-clearance house or licensing consultant. Such entities can do all the research and negotiating for you, often at a lesser fee than many attorneys might charge.

In the end, obtaining proper music licensing not only shows respect for the musical work of all involved, but also keeps the income flowing to those who have worked so hard at creating, marketing, and distributing their art.

Fran Vincent has taught entertainment industry courses at the University of Miami and is the president of Retro Island Productions, Inc. (www.retroisland.com), a marketing/PR and music-supervision firm.

MUSIC LICENSES AT A GLANCE

This table shows some of the most common music-licensing scenarios. Usage License or Permission Needed Granted By

Cover a song or a composition on a CD Mechanical license Music publisher or songwriter Reprint lyrics of a cover song in liner notes Reprint license Music publisher or print publisher Use a sample taken from an existing recording on a CD Sample clearance license, or sample license Record label. Covers the use of the sound recording — this is a form of master use license. May also need a sample license from the music publisher to use parts of a song. Create and sell print arrangements of others' music Special permission Music publisher and/or print publisher Use a song or composition in a movie Synchronization license (covers composition), master use license (covers actual recording) Composer (record label or other entity grants master use license if it owns the recording) Use a song or composition in a TV show, a made-for-TV movie, or a commercial Synchronization license, master use license Composer (record label or other entity grants master use license if it owns the recording) Use a song or composition in a DVD/VHS production Videogram license, synchronization license, master use license Composer (record label or other entity grants master use license if it owns the recording)