Legality of distrubiting free cover songs?

May 26, 2005 1:29 PM

I know that if you want to sell a CD with cover songs on it, you have to get permission from the artist/copyright holder. But what about if you just want to record covers and make them available for free? For fun, I'd like to record myself playing some covers and put 'em up on Ourmedia, but I want to stay on the good side of the law.

I'm pretty sure you don't need any legal clearance to play a cover live (e.g., I doubt that Phish went and got permission for all of the random songs they've played.) And sites like the Live Music Archive seem to offer a precedent for distributing cover songs for free. Can anyone confirm that this is in fact legal?

posted by danb to law & government (9 comments total)

I am not a lawyer. But, lemme tell you a little about music publishing and infringement suits.
First off, when you want to cover a song, you have to talk to whoever owns the publishing rights. If you're looking into performing it live, ASCAP and BMI are the big ones that you'd have to deal with, as they administer most of the public performance rights. If you want to record a cover, you should probably talk to Harry Fox, who administer most of the mechanical rights in the US.
Now, when you put in a request to cover a song, the owners are required to quote you a price. Sure, they can quote you a price that's way out of your ability to pay, and sometimes they do. But often they don't, especially with smaller artists on smaller labels. The administrators generally get 50% of the revenue, so it's in their interest to get the song played often.
But let's assume that either you're pretty sure that you'll get quoted a price that's too high or that you have been quoted a price that's too high. Let's talk about enforcement.
See, with copyright infringement, unless it's criminal (which requires a pretty high level of infringement, if my memory serves), then the amount that you can be sued for is equal to the actual amount that you've damaged the copyrights of the owners. Which, if I understand the circumstances, is not likely to be much. You're providing the songs for free, you're not likely to be confused with the actual performers of the popular versions (I would go out of my way to make that clear when you post these, and to credit those people who do own the rights).
So, you're not exposing yourself to a tremendous amount of liability.
I guess it all depends on what you want to cover. Most things, I'd just send the artist a note asking them if it was OK, and if it is, I'd ask them about who owns their rights. If it's a bigger song, you may just want to do it and damn the consequences. That way, your infringment isn't willful, it's "accidental." Plead ignorance and little damage, and there's not likely to be a whole lot invested in enforcing the copyright. Most likely, you'd just get a Cease and Desist letter.
posted by klangklangston at 1:44 PM on May 26, 2005

You don't actually have to get the permission of the copyright holder before recording a cover song, but you do have to (a) tell them that you plan to do it 30 days in advance, and (b) pay them royalties for each copy you distribute, whether you actually make any money from it or not. The royalty amounts are set by Congress, and are about 8.5 cents a copy for most songs these days.

This site has some pretty thorough info on how to do this.

Strangely enough, the compulsory license applies to recordings only, so you do have to get permission from the rights holder if you plan to do a live performance of a cover.

You could negotiate a better deal if you contact the rights holder directly, but if you publish the songs before doing this, you could be liable for infringement and you will have forfeited your right to get a compulsory license.

Note: IANAL, so YMMV.
posted by purple_frogs at 1:57 PM on May 26, 2005

There exists the concept of a compulsory license to make cover versions of already published songs. Any recording studio probably can fill you in on the mechanics. Certainly, if you are working with a record company they can fill you in. In any event, Google Answers has some good info on getting a regular or compulsory license. For live performances, the hall takes care of the license.
posted by caddis at 2:06 PM on May 26, 2005

Performance rights are paid for live performance. It is just done in a manner that's transparent to the performer. Next time you walk past a music venue, look for a couple of stickers that read ASCAP and BMI. As mentioned earlier, there are rights management organizations that are responsible for collecting royalties on music performed live, on television, and over the radio. The venue pays each organization an annual fee determined by the size of the room and some other factors and ASCAP and BMI redistribute the money to the rights-holders of the songs.

That doesn't answer your question really, but I wanted to clear up a small area of the byzantine collection of publishing royalties.
posted by stet at 2:22 PM on May 26, 2005

"Strangely enough, the compulsory license applies to recordings only, so you do have to get permission from the rights holder if you plan to do a live performance of a cover."

Actually, royalties for performances of music (live as well as from recordings) are paid by the venue. Your local nightclub or coffeehouse doesn't actually keep track of each cover played. Rather, if they allow musicians to perform covers or if they play CDs on their sound system, they're hit up each year by ASCAP, BMI & SESAC for dues based on various factors such as seating capacity, number of nights on which music is played, live or recorded, etc, etc. That money goes into the general pot for the performance rights organization and is distributed to the rights holders based on various formulas. (I believe they used to survey radio stations across the country to see the number of plays for each song they administered the rights to. I don't know if they've updated that approach since then.)
posted by tdismukes at 2:22 PM on May 26, 2005

... as stet and I hit "Post" simultaneously ...
posted by tdismukes at 2:24 PM on May 26, 2005

tdismukes and stet: Thanks for the info on live performances. I had no idea that the venues were even involved with that kind of stuff -- good to know!

purple_frogs and caddis: The sites that both of you linked to both seem to be specific to commercial CD releases. Do you know if the same rules apply to recordings that are not sold?

Also, one more thing: Does anyone know how the Live Music Archive legally operates? Is it because the venues at which the shows are recorded have already paid the fees? Or do they actually have payments going out to ASCAP, BMI, etc.?

Thanks for the replies, everyone.
posted by danb at 3:56 PM on May 26, 2005

Legally, I would think the royalties would apply regardless of whether the music was sold or given away for free. There are some charitable/church type exceptions if you read the statute and depending upon what you are doing the right holder may grant you a license for some free distribution. Of course for a very limited distribution who will know?
posted by caddis at 6:22 PM on May 26, 2005

You have to go through the Harry Fox Agency. They take care of everything. And, yes, you have to pay royalties if you are distributing the song, "whether or not you are selling the copies that you made".
posted by wsg at 11:52 PM on May 26, 2005