Recording Of Local Bands For Their Demo's

[LoVeTheBlues]

I know if I record a cover band, so they can promote with a demo, they can not sell it for $$........................any other legal issues to be concerned with??

[bari_sax_diva]

I know if I record a cover band, so they can promote with a demo, they can not sell it for $$........................any other legal issues to be concerned with??

I don't think that's entirely true. As far as I know, they would need a mechanical license for each song they put on physical media (like a CD) or make available for download, and they can arrange for those from the Harry Fox Agency. Limited quanity licenses are usually pretty cheap and can be handled online, so IMHO it's worth doing just to avoid the potential headaches. The website is at:

http://www.harryfox.com/

Hope this helps,
Leanne

[LoVeTheBlues]

Thank You!!

[Transcriber-arranger]

Limited quanity licenses are usually pretty cheap.

"Pretty cheap?"

[LoVeTheBlues]

Limited quanity licenses are usually pretty cheap.

"Pretty cheap?"


Yes, about 9 cents a song under 5 min long, limited to 2500 songs.........and that is what I believe I read from the HFA website. As a recording service, I can do the steps online with HFA, or I can leave it up to the band, as per the HFA management. Keeps everyone honest, but do people really do that very often?

[Bill Mecca]

Greg,

that caught my eye since I thought it was about $35 a song,(based on some previous conversations) so I took a quick look, HFA does charge a "modest processing fee" per song of $13-$15,(not including the royalties which in their example of an under 5 minut some woudl be $45) so depending upon how deep the band's pockets are....

as to your question of how many bands actually license... I know the demo disks my last band distributed were not licensed, but I had nothing to do with that except playing the tunes live.

[Al Stevens]

The mechancal licenses administered by HFA cover a minimum of 500 copies. So you have to multiply the .09 or whatever it is by 500. So, it's more like $45per song. And that's if the track is less than 5 minutes. It gets more costly when the track is longer.

[Bill Mecca]

Greg,

if you do it for them, make sure you get the cash upfront, ;) and it would have to be licensed in their name anyway. I think this is where a contract of letter of agreement stating that they are assuring you the songs were properly licensed, and you are held harmless.

But, and its a BIG BUT, it would be best to talk to a lawyer who specialises in this area. (your every day, run of the mill attorney might not be very well versed in this specialty)

[Al Stevens]

Many mastering studios and disk duplicating services won't do your job unless you show them the licenses. Others simply require you to sign a form saying you have or will get the licenses. Still others ignore the issue.

Download is a different thing. Mechanical licenses do not cover downloads. You have to negotiate those terms yourself with each of the copyright holders of the tunes, I think with a letter of intent and then monthly reports and payments based on the number of downloads. Cdbaby.com has a tutorial on how that works.

[Al Stevens]

(your every day, run of the mill attorney might not be very well versed in this specialty)
And he or she might not tell you that. Get a referral to a lawyer that specializes in intellectual property law as it applies to arts and entertainment. You can also read the copyright laws cover to cover yourself and learn a lot.

www.copyright.gov/

[Bill Mecca]

another quick read of the HFA site, seems to be a minimum of 250 for CD, Cassette or Vinyl and 150 for "permanent downloads" here's a quote


HFA's Songfile makes this easy. Songfile licensing is a tool to obtain mechanical licenses for physical recordings (CDs, cassettes, vinyl) made and distributed in the U.S. in a quantity of 250 to 2500 units, or to create and distribute from 150 to 2500, permanent downloads of a song from a server located within the U.S., at the current statutory mechanical rate . In addition to royalty fees, there is a modest per-song processing fee of $13 to $15 charged by HFA, depending upon how many songs are licensed at once. All processing is done online, and in most cases, you will have your license within 24 hours. Once processed, licenses are made available to you electronically for viewing and printing through your Songfile account. Please note that all songfile license fees are non-refundable.

but I think we are all on the same page here, best to get a lawyer who knows this stuff inside and out, and remember, just like everyone else, some finished at the top of their class and others at the bottom. ;)

[Al Stevens]

another quick read of the HFA site, seems to be a minimum of 250 for CD, Cassette or Vinyl and 150 for "permanent downloads" here's a quote

That's recent and its good news. When I did my CD last year it was 500. I could've saved a bunch not only on licenses but on copies. And they didn't do downloads then.

Sounds like they're trying to make it more affordable for the small guy to publish a legal product. And maybe have fewer illegal CDs being published.

[bobsax]

All the legal "mumbo jumbo" makes my head spin .
If you just give it away I don't think you need to deal with HFA or lawyers . I think you can also ask for donations to cover costs .

I heard there was rapper that blatantly sampled Beatles tunes and gave it away as downloads . He called it the Black Album . Evidently it was so popular a record company came to him to legally distribute it .

[Bill Mecca]

Copying, performing, etc without a license is illegal.

whether you will be caught and prosecuted is one thing, but it doesn't matter if you sell or give it away, its the Right to Copy that is at the heart of the matter.

[Giles]

If you just give it away I don't think you need to deal with HFA or lawyers . I think you can also ask for donations to cover costs .



I must qualify what I am about to say: I am a recent law school graduate. I am taking the bar exam in a few weeks. This comment does not constitute legal advice.

That being said, nothing could be further from the truth. The sale of a recording of a composition does not create liability, although it could be a factor in determining damages. It is the reproduction of the recording that creates liability.

[Bill Mecca]

Hey Giles! good to see you around.

best wishes on the Bar!!

[Al Stevens]

That being said, nothing could be further from the truth.
It is a commonly expressed bit of misinformation. Copyright law is widely misunderstood and widely misstated by people who don't realize they are passing on ill-informed ignorance.

[rcwjd]

Hello All
First: Disclaimer - Nothing I say here should be considered legal advice - because if you need legal advice - let me refer you to Dewey Cheatum and Howe, Esqs. :D I am an attorney - but I am not an entertainment or intellectual property attorney, so that means I can read a statute and interpret it, but would never advise someone in this area of law.

However, here is an excellent source of information - written in plain English with a minum of legalese - for those interested in some of the legal aspects - including copyright - of the music business: THE MUSICIAN'S BUSINESS & LEGAL GUIDE (2d Ed) by Mark Halloran, Esq. (Prentice Hall pub. 1996).

Now with respect to copyright, here is a simple way to look at it. A copyright is a property right. Just like you have a right to the enjoyment of your home (along with the lender :D ), a composer has a right to the enjoyment of his or her creation - a tune. So, among other things, this means that the composer has the exclusive right to public performance of the tune - as long as the copyright is in force. Once the composer reduces the tune to a lead sheet or a demo CD (or other electronic medium), the tune is fixed in a tangible (you can touch it) medium. So if the tune is original (the composer wrote it and didn't acquire it from someone else's tune) and is fixed in a tangible medium, it is eligible to receive copyright protection. The registration simply provides others notice of the claimed protection.

So, let's assume for the moment that I, the composer, have jumped through the minimum hoops to receive copyright protection and have registered it. I now have exclusive rights to that tune. So, until I allow otherwise, I alone may publicly perform that tune.

Now, I may license the "work," in other words, the tune. One way of doing this is to enter into an agreement with a publisher - for example Hal Leonard - in which I give the publisher exclusive rights to publish my lead sheet, and collect money and pay me for use of the tune. Now, a sound recording, for example a CD, is not a public performance that is exclusive, but a "work" is exclusive. So, if Bill records a hot version of one of my original tunes (and has received my permission to do so directly via a mechanical license or compulsory mechanical license through some agency such as Harry Fox), he cannot secure a license forever preventing any others from performing the tune. He can protect his own CD that incorporates his peformance of my tune so that nobody can copy his CD and distribute it. I can license anyone who wants to record a CD and include my tune (license the use of my tune for the CD). When ASCAP, BMI, or SESAC collects the "public performance" money on the CD version of my tune as recorded by Bill, (e.g. when the radio plays it), the money comes to Hal Leonard and me - not to Bill. He can sell all of the CDs he wants and make money off his CD, but if the radio plays my tune, the money comes to me and the publisher for the use of that tune.

So, now that Bill has put out a CD with my tune on it, how can others also put out a CD with their versions of my tune? Two ways: they can get a mechanical license. (So if Thom also wants to record my tune, he can negotiate a mechanical license directly with me, same as Bill did.) Or, if he doesn't want to negotiate directly with me, he can get a "compulsory mechanical license." That is, he can set up an agreement with the Harry Fox agency or one of its competitors, and pay a fixed royalty rate. Thom has to provide me an accounting for each CD manufactured and sold that he owes that royalty rate on. He and Bill pay royalty rates to Harry Fox, and in turn, Harry Fox pays Hal Leonard (who in turn sends me my cut).

So what happens if the Horny Horns play a cover of my tune in the local ice-cream parlor, but don't record it? If I have an agreement with ASCAP, BMI, or SECAC, they are supposed to collect money from the Horns for me. In practice, this doesn't really happen much. However, if the radio plays it, and a TV commercial uses it, then ASCAP, etc., will collect from them the public performance of my tune - forward it on to Hal Leonard (and eventually I'll get my cut from Hal).

Now because the copyright is a property, it can be bought and sold, just like any other property. So, if you needed the money up front, you might sell the tune for what you thought it was worth to Hal Leonard or someone else, and then the tune isn't yours anymore (wonder how many tunes got sold like that by musician's needing to pay the rent that month?).

So, now I have the copyright, and damned if Haile Salasse isn't copying the lead sheet and selling it to his fellow Order of the Hookah Pipe forum members for a nominal $10 - without asking me and without giving me something for my trouble. What to do? Well, I could file suit. If I did, and won, the Court will provide me with "remedies." What are they? Well, probably the most valuable is the injunction. The Court will tell Haile to cease the copying. Now, money damages aren't probably going to pay the first hour's worth of the retainer fee for Dewey Cheatum and Howe, but I can get statutory damages - whatever the statute says I am entitled to receive. Of course, Haile can raise all of his defenses. For example, he may say that the statute of limitations has expired (i.e. I sat on my hands too long). Or, he might raise some other defense such as "Fair Use Exception." So, I have to decide how much effort I want to put into stopping Haile's efforts.

So now, consider an Aebersold recording of backings from lead sheets for say Herbie Hancock. Most likely, Aebersold has obtained a mechanical license allowing his company to record the backings onto a CD. He also has obtained a license to publish the lead sheet. The composer who obtained the copyright (or anyone who the composer transferred the copyright propery right to) actually owns the tune. Aebersold can prevent others from copying his CD containing the backing of the tune he made, and selling the pirated CD. The composer also could go after the pirate for copyright infringement. So, the sound recording itself, has some protection against Haile copying the CDs and selling them, and I have some protection via copyright infringement to protect my tune.

As I warned at the beginning, the above is my understanding of this area of law, based on my own interest in it from an amateur performer perspective. I do not warrant the accuracy of my interpretations of copyright law, or that I accurately understood all of Mr. Halloran's book referenced above. Maybe the above information and listed reference can answer some general questions about the law itself, not individual situations, and can assist those interested in checking out some of the published literature - and if need be - contacting an actual intellectual property or entertainment attorney. 8-)

[Joe Jazz]

Who says lawyers are long-winded? Bet that comes in handy playing sax.....;)

[Al Stevens]

Most likely, Aebersold has obtained a mechanical license allowing his company to record the backings onto a CD.
He probably did, if only to avoid nuisance litigations from ASCAP, etc., but there's a gray area here.

Ignoring the lead sheets, the backing tracks have none of the tunes' melodies on them. There are only titles printed on the CD cover and chord changes played by the rhythm section. As such, no copyrighted material has been copied in the manufacture of backing tracks (according to my intellectual property lawyer); titles can't be copyrighted and neither can chord changes. The copyrighted parts of tunes are the melodies and lyrics. (I am just passing on what I was told and do not offer it as advice.)

I once sent an email to JA asking whether the playalong CDs are covered by mechanical licenses. I received no reply.

[Al Stevens]

So, among other things, this means that the composer has the exclusive right to public performance of the tune

If the composer is a member of a "performing rights society" (ASCAP, e.g.) and a performance venue has a performance license granted by the society, performers may perform the tune in the venue.

It is unclear to me whether a member of a performing rights society, a composer, that is, may exclude specific ones of his or her works from being covered by blanket performance licenses. I cannot find wording in the law that clarifies that point. However, ASCAP, for example, publishes its "repertory," which implies that if a composer-member does not register a copyrighted work with ASCAP, the composer retains the exclusive right to public performance. But ASCAP does not explain that where I can find it, and I never asked my lawyer about it.

Perhaps someone here knows the answer.

[rcwjd]

Who says lawyers are long-winded? Bet that comes in handy playing sax.....

Some even play bari saxes! :D

the backing tracks have none of the tunes' melodies on them.

I agree. That is why the changes to Blue Bossa still appear - even though the corresponding lead sheet does not. I suspect that his main issue is to secure rights to publish the lead sheets.

It is unclear to me whether a member of a performing rights society, a composer, that is, may exclude specific ones of his or her works from being covered by blanket performance licenses

It is my understanding that a composer may not prevent others from covering his "works" if they properly obtain mechanical licenses once a single performer has produced a CD (sound recording) of the work. The same would be true of public performances I suspect.


I also believe that ASCAP is simply one of three major organizations (along with BMI and SECAC that collect fees for public performances and pass them along to the publisher/composer. Thus, I believe that ASCAP's repartory (or for that matter BMI's and SECAC's) only reflects the tunes where the composer/publisher/copyright holder has negotiated arrangements with that particular organization.

Hmmm, perhaps there is money to be made in this area of law. Maybe I should represent fewer dope dealers and focus on musicians - maybe get into intellectual property law - hmmm - naw! :D

[rcwjd]

Who says lawyers are long-winded? Bet that comes in handy playing sax.....

Some even play bari saxes! :D

the backing tracks have none of the tunes' melodies on them.

I agree. That is why the changes to Blue Bossa still appear - even though the corresponding lead sheet does not. I suspect that his main issue is to secure rights to publish the lead sheets.

It is unclear to me whether a member of a performing rights society, a composer, that is, may exclude specific ones of his or her works from being covered by blanket performance licenses

It is my understanding that a composer may not prevent others from covering his "works" if they properly obtain mechanical licenses once a single performer has produced a CD (sound recording) of the work. The same would be true of public performances I suspect.


I also believe that ASCAP is simply one of three major organizations (along with BMI and SECAC that collect fees for public performances and pass them along to the publisher/composer. Thus, I believe that ASCAP's repartory (or for that matter BMI's and SECAC's) only reflects the tunes where the composer/publisher/copyright holder has negotiated arrangements with that particular organization.

Hmmm, perhaps there is money to be made in this area of law. Maybe I should represent fewer dope dealers and focus on musicians - maybe get into intellectual property law - hmmm - naw! :D

[Bill Mecca]

Richard, I think your choice in clients would need to reflect an "ability to pay." ;)

[Al Stevens]

It is my understanding that a composer may not prevent others from covering his "works" if they properly obtain mechanical licenses once a single performer has produced a CD (sound recording) of the work.
That is true. Once rights have been granted for a recording to anyone, they cannot be denied to others. It's called a "compulsory license."

The same would be true of public performances I suspect.Yeah, once a tune is covered by ASCAP et al, performing rights licenses are available to anyone.

The difference between a performance rights license and a mechanical license is that the former is a blanket license for public performances of all the tunes in the perfoming rights society's repertory, whereas the latter is a one-time licence for a single recording of a single tune.

The latter also includes the right to make a derivitive work arrangement, too, whereas, as near as I can tell, the former does not, even though there is no intent to publish the arrangement only to perform it. That question became a hot issue with our local community band.

[rcwjd]

The latter also includes the right to make a derivitive work arrangement, too, whereas, as near as I can tell, the former does not, even though there is no intent to publish the arrangement only to perform it. That question became a hot issue with our local community band.

Interesting. It appears that the composer has to agree to an arrangement of his or her original work as far as publishing an arrangement of the lead sheet. I suspect that the same would be true of a recording. As long as the recording is recognizable as the original, underlying tune - albeit arranged and/or improvised over - it would require either a mechanical or compulsory mechanical license. However, if only the changes were used, and the melody was not recognizable as the original work, I believe that no license would be required (e.g. Blue Bossa changes with the unrelated Solar Flair melody recorded from the lead sheet - Solar Flair.) So, I guess, where does an arrangement stop being derivative from the original work and becomes an original work on its own? That may be the issue. 8-) An example is given in the Halloran book I referenced of a Beatle's tune where they had to pay up to the Chiffons because that tune was sufficiently similar to the Chiffon's tune's melody line (albeit very different in instrumentation, style, tempo, etc.)

[rcwjd]

In a related area of interest, is a performer's ad lib solo over a tune's changes subject to copyright protection? One gains copyright protection as soon as one produces and original work (arguably an ad lib solo could be) and fixes it in time (via some form of electronic medium). So, if one transcribes the solo, and then publishes the transcription without first obtaining a performance license from the artist, does he or she have exposure to copyright infringement? Bear in mind, copyright protection begins when the original tune is fixed in time - and does not require registration. Registration simply provides others notice of the protection. Something to mull over. :D

[rcwjd]

Since we have kind of opened up the doors to some interesting discussion, it might be cool to talk a bit about "hold harmless" agreements. So, let's say the Gate Crashers come to you and say "we want to record a demo CD and include the Bullwinkle and Rocky theme." They further tell you that they have already obtained the mechanical license from the publisher. Being a suspicous sort (the lead singer of the Gate Crashers dated your sister and you know him a bit too well) you demand a hold harmless agreement saying that the Gate Crashers hold you harmless if they didn't quite tell you the whole truth on the license deal. Your name is on the Demo CD as the recording studio so aggrieved publishers will know where to find you. And wouldn't you know it, the Gate Crashers exaggerated a bit about having obtained the license, and now the publisher has sent you a friendly summons and complaint. :D Does the hold harmless agreement protect you? Probably not against the publisher's action. The publisher likely could care less about your agreement with the Gate Crashers. The publisher was not a party to that agreement and is not bound by its terms. You might have an action in contract against the Gate Crashers for them to indemnify you for your damages after the publisher gets through with you, but the hold harmless doesn't help you much against the publisher. So, by all means, get the band to sign a hold harmless agreement. But, just understand that it probably will be worth about as much as the paper it is written on if the other party is judgment proof (assuming that you take the other party to court and win). Perhaps a more meaningful solution in terms of prevention would be to verify the license before recording the tune. :) ;) And, just to add to the fun, it doesn't matter one iota if the band gives away the CD if they haven't obtained the license (unless they can demonstrate an exception such as the Fair Use Exception (unlikely under these facts)).

[LoVeTheBlues]

[QUOTE=Al Stevens]; titles can't be copyrighted and neither can chord changes. The copyrighted parts of tunes are the melodies and lyrics. QUOTE]

Now I see how the Real Books came about...........;) (another topic)

-------

Thanks for the dialog people........learning some new things here.........It is impossible for me to find a lawyer up here in the sticks.............I will depend on HFA for doing things right............we'll see where I am in a couple years:D I'll probably go nuckin' futs:shock:

[Al Stevens]

In a related area of interest, is a performer's ad lib solo over a tune's changes subject to copyright protection?

Improvisation is a special case in copyright law. A written arrangement is a derivative work. An improvisation is not. The idea is to free the improvisor from needing the composer's permission to make an improvisation, whereas the arranger does need that permission.

Since an improvisation is not a derivitive work subject to copyright protection, is it an original work subject to copyright protection? Very gray area. How much, if any, of the original melody exists in the improvisation? I think the framers and the lawyers and the courts avoid this issue, because (1) it's too thorny, and (2) they don't understand the difference between the head and a ride.

I could argue that since the head of my recording is less than five minutes and the ride, which is my impromptu composition based on the chord changes, takes up all the time above five minutes, I should not have to pay HFA the extra fees for the mechanical license. I wonder how far that would get if I went platinum with a high-visibility recording?

Does Supersax owe royalties to Bird's estate?

It would probably take court cases to establish such precedents. There is probably not enough money at stake to justify them.

Copyright and other parts of intellectual property law have a lot of untested gray areas.