What royalties are owed for an arrangement of an old folk song?

June 18, 2007 7:39 PM

My band are thinking of putting out a CD using a modified version of someone else's arrangement of a traditional folksong. What royalties, if any, do we owe them?

This person has put out a CD-R of their solo guitar arrangements of traditional folk songs and made the guitar tab available online. We'd like to record and release a version of one of these. Their version was just guitar, and we'd be adding vocals and several other instruments, maybe a bridge or a guitar break that departs from their arrangement. But the the guitar part would basically be their tab almost verbatim. I'm somewhat familiar with the rates and process of recording a cover version of something that's not public-domain. But I have no idea what is the procedure for someone's copyrighted arrangement of a public-domain song.

I'll be contacting them directly saying "We'd like to take your arrangement and record it like this, and we'd be happy to pay you the going rate for this type of thing" but what is the going rate for this type of thing? And just because I'm curious, when it comes to traditional folk songs, at what point does it cease being a cover of someone's copyrighted arrangement and become your own original version of a song you learned from someone else? Is it when you add extra instruments, or add your own intro/outro/bridge, or what?

posted by Martin E. to media & arts (2 comments total)

Firstly, the going rate currently for mechanical licensing (according to the Copyright Arbitration Royalty Panel is 9.1 cents per copy manufactured.

Now, having said this, this is the base rate required if you do what is called a compulsory license - it's a rule that states you are allowed to make a recording of someone elses work under a compulsory non-exclusive license, provided you make payments according to the compulsory license structure (once every 30 days, I think) and you are not the first person to perform the song. Since you have a recording that has been published, this part is satisfied.

You are not required to use this rate; you can contract with the artist to pay any rate they require, but should they not wish to play ball, you can resort to a compulsory license. More about that here.

What you are talking about with regards to making a cover your own is, in a round about way, a Derivative Work. This is when you use an underlying work, but make sufficient changes that you can claim it as your own, separate work. I'm not sure that compulsory licenses and derivative works play well together, so do a bit more reserch on that, or consult competent council in your area.

You're on the right track, just keep going in this area. Last note: if the song is a traditional folk song, chances are you may not even have to have a license - most likely, its in the public domain, and you can perform/record the song no problem. However, be very careful about this - if the performer you have spoken to has made ANY changes to the original song, you still infringe the copyright on his particular arrangement, which is a separate derivative work in and of itself.

IAN(Y)AL, and most importantly, IAN*YOUR*L. Consult council in your area before proceeding.
posted by plaidrabbit at 8:04 PM on June 18, 2007

Here's a fun little walk-through on how to deal with "cover songs". Hope it helps. If you have the resources, I suggest consulting an entertainment lawyer. I've recommended CLA in the past, because I've had them listen to a situation or two for free. Setting aside questions of what constitutes a cover versus a derivative work, the main issue is who you should contact first to let them know about your intentions. The record label? The arranger? A PRO? The artist? Or HFA? The answer lies in who currently owns the publishing rights, or who represents them. Involve unnecessary people, and the situation gets messy. Let me suggest that calling up somebody and saying "we'd like to pay you the going rate for this sort of thing" is the worst possible thing to say in terms of closing a deal. Figure out ahead of time what you might think is reasonable (if this guy, for example, hasn't signed his publishing rights away and is a starving artist, $200 might be reasonable) - and then call them to explain your situation and make an offer. Prepare to have that offer in writing and be able to fax it to them at their request.

As for the above link's author, since the guy's specialty is guitar solo arrangements, I wouldn't hesitate to courteously contact him via email.
posted by phaedon at 9:28 PM on June 18, 2007