DISCLAIMER: This post is not intended as legal advice, for specific information pertaining to your situation consult an attorney who specializes in entertainment law.
Copyright often remains in effect long after the death of a song’s writers: U.S. copyright protection currently lasts 70 years beyond the life of the writer. Most songs you will wish to perform and record are still copyrighted. Songs protected by copyright earn money for their owners (even after the actual writer has died.) To perform, record, or alter copyrighted songs you and your band will need to seek licenses from the song owners, and/or the publishers and agencies that administer their copyrights.
Mechanical Licenses from Harry Fox Agency
Fortunately for you, the mechanical rights to many songs are managed by the Harry Fox Agency this organization allows you to pay for the mechanical licenses you need to make recordings. Limited quantity licenses, for fewer than 2,500 physical copies or 10,000 interactive streams, can be purchased through Harry Fox Agency’s online mechanical licensing system called Songfile. There is a processing fee of $14-$16 for each song licensed through Songfile, and you will need to know how long your version of the song will be, what media you are using (CD’s, ringtones, or interactive streams), how many copies you plan to make, and basic information about the original song. Use the Songfile Public Search database to find out if Harry Fox can give you a license, and watch the Songfile demonstration video to get started. For larger quantities (more than 2,500 CD’s) you will need to set up an HFA License Account. You can then register use their eMechanical online license request system.
Negotiating Rates
If Harry Fox Agency is unable to grant you a mechanical license to record a cover song, perhaps because they only represent some of the song’s owners, then you will need to contact the copyright owner or publisher directly. You will also need to contact the owner/publisher to negotiate anything other than the statutory rate; Harry Fox Agency can only grant licenses using the statutory mechanical rate. In order to find out who owns and publishes songs try searching databases from the PRO’s and Harry Fox Agency (see research links below.)
Medleys
Medleys or songs with samples can be expensive to record. For example, if you decided to record a Christmas medley including excerpts from 3 different songs, then you would have to pay 9.1¢ to each of the 3 songowners for the medley if you license it through Harry Fox Agency. So instead of paying 9.1¢ for a 5-minute song you will end up paying 27.3¢! Although Harry Fox Agency is unable to negotiate lower rates, by speaking with song owners/publishers directly you may be able to persuade them to negotiate a lower licensing rate in proportion to the use of their song in the medley.
Sampling
If you sample other artists’ recordings you will need to obtain a master use license directly from the owner of the soundrecording, this is in addition to the mechanical license you will obtain from the songowner/publisher. Unlike mechanical licenses, there are no statutory rates for master use licenses. The owners of sound recordings have the right to prevent you from using their recording at all, or to charge you high upfront fees and/or royalties to sample their recording. Get your master use license before adding samples into your final recording for more leverage when negotiating.
Making Changes to Cover Songs
To put your own mark on a cover song you may wish to change things such as the lyrics. As with negotiating a lower mechanical licensing rate, you will need to contact the song owner/publisher directly in order to make alterations to the song. Changing aspects such as tempo and key do not normally require permission, but for changes to the melody or lyrics consult the song’s owner/publisher; be prepared to pay a fee for the privilege and to submit your intended changes for approval prior to recording.
