Ken Goes, Pt. II

Music Publishing, Part II, by Ken Goes

Ken Goes was the manager and publishing administrator of The Pixies for over two decades and provides this information exclusively for TuneCore customers. If you missed Part One from our newsletter, read it in our blog, TuneCorner, here.

IMPORTANT: This information is not intended as legal advice.

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.

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.

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.

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.

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.

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.

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.

If you missed Part One from our newsletter, read it in our blog here.

Comments

[Peter Wells]

Bill, just in case you check here, the answer is, as Ken wrote above:

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.

[WAYNE HANDZUS]

9.1 CENTS I MEAN SORRY , NOT 9.01 CENTS REQUEST SEND EDIT PLEASE THANKS WAYNE HANDZUS

[WAYNE HANDZUS]

WOW, HEY, THANKS ALOT FOR THE INFO, I HAVE SENT OFF TO WASHINGTON THE SOUND RECORDING PAPERS, AND KNEW I HAD TO PAY SOMEBODY FOR THE COVER TUNES I DID. THERE ARE A FEW. I LIKE TO DO COVER TUNES TOO, AS THERE IS ALOT OF GOOD MATERIAL OUT THERE, WELL WRITTEN MATERIAL, BY THE MASTERS OF THE INDUSTRY. I HAVE FOUND THAT SOME OF THE REALLY GOOD SONGS THAT WERE BIG HITS, WERE BIG HITS FOR A REASON, THEY ARE REALLY REALLY GOOD TUNES WITH GOOD COMPLEX CHORD CHANGES, COURSE THERE ARE BASIC 3 CHORD AND 2 CHORD TUNES AS WELL. NOW I SEE WHY ALOT OF PEOPLE DONT DO COVER TUNES THO, 9.01 CENTS IS KIND OF HI. I WAS HOPING TO JUST PAY EM ONE TIME AND BE ABLE TO DO THE TUNE, DOESN'T LOOK THAT WAY AT ALL, ACCORDING TO YOUR NEWS LETTER, SO IT LOOKS AS IF I WILL BE DOING MORE OF MY OWN SONG WRITING NEXT TIME.I STILL MAY DO SOME COVER TUNES THO, JUST BECAUSE I LIKE THEM, AND I FIGURE I CAN DO THEM JUSTICE, RECORDING THEM WITH MY UP TO DATE GEAR I AM USING HERE. 9 CENTS IS ALOT THO, CONSIDERING, THE OTHER SIDE OF THE COIN IS THAT IF I HAD BEEN THE ONE TO WRITE THE TUNE, I CERTAINLY WOOD LIKE THE 9.01 CENTS PER SALE MY OWN SELF. FOR SURE. ALL RITE NOW, I AM OUTTA HERE, THANKS AGAIN FOR THE INFO, IT IS DOWN TO THE WIRE FOR ME, COPYRITES SHUD BE COMING BACK SOON FROM WASHINGTON DC. WAYNE HANDZUS

[Peter Wells]

Remember, Bill, there's two sets of copyright. You CAN do a cover of something that's still under copyright, if you do it properly. It's perfectly legal. Read more here: http://www.tunecore.com/index/faq#Cover

Write me if you have any questions!

--Peter
peter@tunecore.com

[Bill Patacchia]

If you have an album that you would like to send to TuneCor, it would be impossible to check each song on it to see if it is still in copyright or the copyright has ended. So
how can we send you an album of our music without fer of a lawsuit? The music I played was from the Big Band era many years ago. I think most of the songs of waltzes or polkas would be O.K. but the ballads and
swings and Latin tunes would be questionable???