Music Publishing and Copyright: Cover Songs - TuneCore

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THE BASICS YOU SHOULD KNOW
ABOUT MUSIC PUBLISHING AND COPYRIGHT: COVER SONGS
BY KEN GOES, FORMER MANAGER & PUBLISHING ADMINISTRATOR
for THE PIXIES
IMPORTANT: The information in this section is not intended
as legal advice.
This section is about music publishing. Music publishing is about the
ownership of songs. Music publishing is about the rights of songwriters
and song owners. And perhaps most importantly, music publishing is
about money.
Music publishing can be complex and confusing. Our aim here is to
simplify the most basic concepts of music publishing as they relate to
“covers.” Covers are normally songs written by established artists like,
for instance, “Yesterday” by The Beatles. But covers don’t have to be
popular songs. A cover can be a song that has been recorded by an
unknown artist. The important thing to remember is that any song which
you record that was written and previously recorded by someone else is
a “cover.”
is it a ‘sound recording’ or a ‘composition’?
The first thing we have to understand is that a song
and a recording of a song are two different things.
They are two distinct properties. These two properties
are called the “sound recording,” (sometimes
called the “master”) and the “composition,” (sometimes
called the “work”). Music contracts of all types use these terms to
designate one or the other.
Here we are mainly interested in the “composition.” The common everyday
word we use for “composition“ is the word song. In the following,

whenever you see the word song, you can think composition and whenever
you see the word composition, you can think song. These two words
are synonymous and are used here interchangeably.
Like all property, these two
properties, the “sound recording”
and the “composition,” come with
rights. Just as you have a right to
determine who uses your personal
property, owners of the “sound
recording” and owners of the “composition” (song) have the right to determine
who uses their property.
Who owns what? Let’s see by way of the following examples. Let’s say
you record the Beatles’ song “Yesterday,” probably the most covered
song in history. Since you have made the recording, you own the property
called the “sound recording,” that is, your particular recording of the song.
But the recording is a cover of a song. You did not write the song. You
do not own the song. The song is owned by the Beatles, (or more likely a
music publishing company, but more on that later). The song or “composition”
is also property.
Another example : Let’s say three separate bands record the song “Yesterday.”
We still have only two properties : three of one kind : the “sound
recordings,” and one of the other kind : the “composition.” To sum up, we
have the “composition” and we have the “sound recording” of the “composition.”
Two separate properties.
intellectual property
These kinds of property are called “intellectual property.” Other kinds
of intellectual property are books, movies, paintings and so on. And, as
mentioned earlier, these properties come with rights. The particular right
you have to your “sound recording” and the particular right the Beatles
have to the “composition” is called a COPYRIGHT. A copyright is the right
to reproduce or make copies. This right is granted by the United States
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Copyright Law and similar laws in other countries. If you would like to
learn more about the United States Copyright Law, please go to:
http://www.copyright.gov/circs/circ1.html#wci
Only the owner of the song has the right to reproduce or make copies of
his or her song. The owner also has the right to grant permission to others
to reproduce or make copies of his or her song. So, before you can record
and make copies of someone else’s song, you need to get permission from
the owner. You get that permission by getting a license, just like you get
permission to drive by obtaining a driver’s license.
This license is called a mechanical license. By getting this mechanical
license from the songwriter or from a music publishing company acting on
behalf of the songwriter, you will then have permission to record, reproduce
or make copies of the song.
publishing companies
A word about music publishing companies and the ownership of songs
- The songwriter is the owner of the song. But most songwriters do not
look after the rights to their songs. Issuing licenses for the use of a song,
collecting the royalties, accounting, etc. is a lot of work. This kind of work
is called administration. In most cases, songwriters have music publishing
companies do this administration for them. But in many cases, the
songwriter sells the song to the music publisher. In this case, of course,
the music publisher is the owner of the song and the rights that go with it.
But whether the music publishing company owns the song or administers
the rights to the song on behalf of the songwriter, the music publishing
company will issue the mechanical license.
To sum up : getting a mechanical license gives you permission to reproduce
(copy) the song. Of course, in using TuneCore, the song is being
reproduced digitally, but it’s the same principle : every time someone
downloads the song, a copy is made.

who gets paid
For every copy sold, the songwriter or publisher must
be paid. The amount required to be paid for the sale
of each copy of a “composition” is called the mechanical
royalty. The royalty rate is established by the
Copyright Royalty Board of the Library Of Congress;
a government agency empowered by Congress to determine
the royalty rate. The royalty rate set by the
Copyright Royalty Board is called the “statutory rate.”
Statutory is a fancy legal word meaning required by law. So, the rate set
by the Copyright Royalty Board is the statutory mechanical royalty rate.
The current statutory mechanical royalty rate that must be paid to the
song owner or publisher is 9.1 cents ($.091) per copy. When you record
a cover song, every time that recording sells, you owe the songwriter or
publisher 9.1 cents. All mechanical licenses will specify this rate. Sometimes
the rate is specified in pennies; otherwise the license will specify the
“statutory rate.” In some cases, you can negotiate with the songwriter or
publisher for a lower rate, but unless you can demonstrate that you will
have enormous sales, the likelihood of getting a lower rate is slim. Finally,
the rate does not remain static or permanent. In fact, as I write this in
February 2008, the Copyright Royalty Board is considering a change in the
statutory rate.
compulsory licenses
A word about the “Compulsory License.” You may have heard of something
called a “compulsory license.” The U. S. Copyright Law allows you to
get a “compulsory license” in lieu of getting a mechanical license directly
from the publisher or songwriter. But this method is a lot more work. Using
this method entails specific requirements for notifying the song owner
and stringent requirements for accounting. And you will still pay the full
statutory mechanical royalty rate. It is not recommended that you try this
method. The best and easiest way to get a mechanical license is from the
songwriter or the publisher directly.
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synchronization licenses
We hope that’s clear, but we’re not quite
done. Now, let’s say you want to make a video
of your recording of “Yesterday.” You’ll
need another license. This license is called
a “synchronization license.” This “synch license”
gives you the right to synchronize the
“composition” (song) with visual images. The
synch license also contains the same right
as a mechanical license; the right to make copies. But the synch license is
not a substitute for a mechanical license. The only reproductions or copies
you can make with a synch license are copies of your video containing
the “composition.” And, depending on how you want to use the video,
you may be restricted as to how many copies you can make. For instance,
if you want only to have your video broadcast on TV, the internet,
cell phones, etc., you may be restricted to making copies for just that
purpose. But if you also want to sell your video over iTunes or anywhere
else, you must have that right specified in the license. A synchronization
license is a lot more fluid and flexible than a mechanical license, so when
you get one, be sure you know what you want to do with the video and
make sure you ask for those rights to be included in the license.
You get a synch license the same way you get a mechanical license. You
must contact the publisher or songwriter. There is no set royalty rate for
a synch license. It is all negotiable between you and the songwriter or
publisher. You can negotiate to pay a one time up-front fee or pay a royalty.
The royalty rate will be the amount agreed upon between you and
the publisher for the sale of each copy. In some cases, you may have to
pay both an up-front fee and a royalty, or an advance against future royalties
and subsequent royalties once the advance is paid off. It all depends
on your negotiations with the publisher.
The mechanical right, the synchronization right; these, along with others,

like the reprinting of lyrics, are called publishing rights. This is music
publishing.
your friend, the harry fox agency
A word about The Harry Fox Agency. The Harry Fox Agency is a giant
agency that also administers music publishing rights, though they do not
issue synch licenses nor do they grant permission to reprint lyrics. Just
like music publishers act on behalf of songwriters, The Harry Fox Agency
acts on behalf of songwriters and publishers too. In many cases, they will
be the source you will go to for a mechanical license.
so who owns the songs?
At this point you are probably asking yourself : How do I find the owner
or publisher of a song? Just about every song in existence is registered
with either ASCAP, BMI or SESAC. ASCAP, BMI and SESAC all have
web sites that you can search to find the owner or publisher of a song.
Remember, there are many songs with the same title, so be sure you are
identifying the right song. If you know who wrote the song, it will make
your search a lot easier. Once you have found the right song title and
writer, the information regarding the owner or publisher will be there
alongside it. Another good site that will help you track down the administrator
of a song is the Harry Fox Agency web site called SongFile. By
visiting these web sites and doing a little detective work, you will, in most
every case, find out who you must
contact in order to get a license.
The license will be very specific
about who to pay, how often
you must pay and, of course, the
amount to be paid. Good Luck.
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