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Copyright & You: A Quick Primer on Recording Copyright Law


Recording a CD entails a lot of hard work, perseverance, a lot of faith, and inevitably, a load of paperwork. "Paperwork?!?" you stammer. "We just want to SING, man!" Of course you want to make music - otherwise you wouldn't be recording a CD! But there are important steps that you need to take and laws that you need to comply with. Read on for a quick - VERY quick, and not nearly comprehensive - lesson on what's involved in putting your sweetest version of "The Lion Sleeps Tonight" on your sure-to-be-platinum-selling CD.

LICENSING LINGO
This is some general information on the licensing process, which is good to know if you choose to manage your own licensing.

Q: What constitutes a "publisher" when talking about copyright?
A: A "publisher" is the owner of the copyright to a song. A "song" does not mean a recording of a song. It means just the words and music, the melody, harmony, and lyrics. This does not mean the sheet music publisher, or the CD manufacturer (or record label) - it means the person who wrote the song and/or holds a copyright on it.

Q: So are Harry Fox, ASCAP and BMI "publishers?"
A: No. They are merely companies that exist to collect money for songwriters (aka copyright owners) so they can get paid whenever their music is used.

Q: How do I find out who's the publisher?
A: It's usually listed in the album credits in the original version of a song (or a cover of the song). If it's not there, go to one of the web sites of one of the companies mentioned above (say, ASCAP) and type the name of the song into the search box and hit "Search." The site will return the name(s) and address(es) of any applicable copyright holders.

COVER SONGS: DEFINITIONS AND INSTRUCTIONS ON GETTING CLEARANCES
Q: What is a "cover song" and what are my obligations if we've recorded one?
A: "Cover songs" are songs that you or someone in your group did NOT write, basically anything that you are obligated to pay a copyright owner (aka "publisher") to create copies of. 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.

Q: What about groups outside the U.S.? Do they have to pay licenses, too? Can international groups participate in the digital download program?
A: Yes, international groups can participate. Yes, they are obligated to pay any applicable license fees if they cover a song that was released in the U.S.. If they're doing a cover of a song that was *not* released in the U.S., then that's different. They should research their own countries' policies on compulsory licenses. If they're covering a song that *has* been released in the U.S., then they should follow the steps below to obtain proper clearances.

The Copyright Act provides for what is called a "Compulsory License" for downloads and CD sales, 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. This Compulsory License is only available for sales in the United States. Other uses of masters, such as streaming, conditional downloads, and the like, are not subject to a Compulsory License. A separate license from the publisher is needed in those cases.

IF YOU WANT TO GET LICENSES YOURSELF:
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:

1.) FIND OUT WHO THE PUBLISHER IS. 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)

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 a letter of intent 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.

2.) OPEN AN ACCOUNT WITH HARRY FOX and pay your royalties online.Go to Harry Fox's Songfile site to register and manage your license applications, payments and royalty responsibilities online there, using their "eMechanical" application. This is VERY easy - they have thousands and thousands of songs listed, and the process is very well explained there. This should be your first stop (and will probably be the only place you need to go).

ALTERNATIVE OPTION: Obtain a manual "Compulsory License"
Using the Harry Fox online services available to pay your royalties each month will eliminate a lot of time and certified mail fees from the process, so we highly recommend that you go that route. Otherwise, you may be spending more time and money in filling out forms and certified mail fees to make it worth while!

But IF you don't want to go through Harry Fox (or you can't find the title of the cover song you want a license to distribute in their Songfile database), you can still obtain a compulsory license by following these steps:

2a.) Send a "LETTER OF INTENT" to the copyright holder(s) listed in your search results from any of the other sources mentioned above. 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. A clear subject line/title that says "Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords"
b. Your full legal name
c. All fictitious/assumed names (stage name, band name) used d. 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)
e. Your fiscal year (usually January 1st - December 31st)
f. Your full physical address - P.O. boxes are unacceptable, unless that is the only option for addresses in your geographic region
g. The title of the song
h. Name(s) of the author(s) of that song
i. The type of configuration expecting to be made (a music file distributed over the Internet is called a "Digital Phonorecord Delivery" (DPD))
j. The expected first date of distribution
k. The name of the performer/band doing the cover
l. Your signature.

**NOTE: 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.

3.) SEND ROYALTY STATEMENTS and PAYMENTS
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:

1. A clear title that says "Monthly Statement of Account Under Compulsory License for Making and Distributing Phonorecords"
2. the period (month and year) covered by the statement
3. your full legal name
4. all fictitious/assumed names (stage name, band name) used
5. 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)
6. your full physical address - P.O. boxes are unacceptable, unless that is the only option for addresses in your geographic region
7. the title of the song
8. name(s) of the author(s) of that song
9. the name of the performer/band doing the cover
10. the playing time (length) of your recording of the song (minutes:seconds)
11. the number of DPDs made, i.e. how many times your recording was downloaded
12. the number of DPDs that were never delivered due to a failed transmission
13. the number of DPDs that were retransmitted in order to complete/replace an incomplete/failed delivery
14. the total royalty payable (number of total DPDs, not counting ones never delivered multiplied by the statutory royalty rate (see below))
15. 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"
16. 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).

Q: What are the current statutory royalty rates?
A: The current (2006) statutory rate for royalties is 9.1¢ 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 1.75¢ per minute, rounding up to the next minute.
I.E.:
* under 5 minutes = 9.1¢ per copy
* 5 to 5:59 minutes = 10.5¢ per copy (6 minutes x 1.75¢)
* 6 to 6:59 minutes = 12.25¢ per copy (7 minutes x 1.75¢)
* 7 to 7:59 minutes = 14¢ per copy (8 minutes x 1.75¢)

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

So like we said above, it's probably MUCH easier to go through the Harry Fox Songfile web site and do everything electronically and online there.

Remember: 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.

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Have questions? Give us a call at 800-827-2936 or email digitaldist@a-cappella.com and we'll be happy to help!

 
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