How Do We Legally Record Cover Songs?

Before you begin releasing cover albums, consider the implications under U.S. copyright law.

Question

My band is recording an album of cover songs. We know we have to list all of the original writers and owners of the songs, but what else do we need to do before the album is released? Do we need to pay royalties to anyone?

Answer

Everyone loves a cover song. It's a new take on a popular classic, which often makes audiences appreciate different aspects of the music and lyrics. But before you begin releasing cover albums, you should consider the implications under U.S. copyright law.

The Copyright Act of 1976 gives creators of original works, including music and lyrics, certain exclusive rights. These include the exclusive right to copy, perform, and sell the works. So what does this mean for a cover band that wishes to publicly perform, and perhaps sell, the songs of other musicians?

To record a song for release to the public, a performer must obtain permission from the music publisher of the song and pay a fee, called a mechanical royalty. A mechanical royalty must be paid when songs are reproduced, for example on compact discs or records.

There are two ways to get permission and pay the mechanical royalty:

  • A compulsory license may be used, and the preset statutory mechanical royalty rate paid directly to the music publisherthe easiest, least stressful method.
  • Permission and a mechanical royalty may be negotiated directly with the music publisher or the Harry Fox Agency.

Under the compulsory license procedures, you need not ask the music publisher's permission to make the recording or negotiate a license fee. Instead, you merely inform the publisher of the recording and pay a license fee set by law.

You can get helpful information about the procedure by downloading Circular 50, Copyright Registration for Musical Compositions, from the U.S. Copyright Office.

When using the compulsory license procedure, the music publisher must be paid a mechanical royalty rate set by the government—sometimes known as the statutory rate. This rate increases every few years. For information on the current mechanical rate, review the U.S. Copyright Office website or call the U.S. Copyright Office Licensing Division at (202) 707-8150. You can locate song owners at www.bmi.com or www.ascap.com, which maintain updated lists of music.

(Note that none of this applies to songs recorded before 1922, which are in the public domain and not protected by copyright).

Finally, putting copyright law aside, it is always wise to acknowledge the source of your songs. Musicians, like other human beings, appreciate being given credit for their work. Providing publicity to the musician or lyricist on your website or album materials will mitigate any sense that you are "stealing" the work without credit, or attempting to claim that you are the true creator. Such an approach can anger musicians even more than the legal aspects of enforcing their copyrights.

You may wonder how likely it is for your band to be sued by a musician. The short answer is that litigation is fairly unlikely, though it is possible. In most situations, famous bands are unlikely to sue their fans for posting cover versions of their music, particularly if the fans give them credit and are not attempting to profit from the cover. (After all, the optics of a major musician suing her fans won't be good for business!). If you do wish to profit from the cover music, however, you should follow all requirements for royalty payments.

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