I recently read that some band’s lawyers sent a Conservative talk show host a cease-and-desist letter because the host played one of their songs, regularly, I don’t know, for a theme song, or for some regular segment, or who knows what, and the band was miffed.
So, can a band/musician really have that kind of thing enforced, or is it just some bluff or publicity thing, to show their disapproval of the host’s message?
Thanks,
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They can’t stop another artist from recording or performing it (subject to payment of licensing fees). However, you must get permission for commercial use (e.g, an advertisement).
Using it as a theme song would probably be commercial use.
Oddly enough a couple of days ago I was reading this article about English singer David Gray’s complaints about songs being used as a torture device.
Short answer: It depends completely on the specifics in the artist’s recording contract. And for all but the very top mega-stars (think The Beatles, Madonna, Pink Floyd, Led Zeppelin, Bruce Springsteen etc.) individual artists cannot personally order how their material will or will not be used.
I’m not getting this. Why should anyone care what the specifics of an “artist’s recording contract” are? How would they even know? I’m not party to any contract any artist signs, so I can’t be held accountable to it.
This is either covered by general law - copyright, trademark, or licensing - or it’s not covered at all.
Because as part of a recording contract, the artist might have signed away their copyright.
Yes, Virginia, there is a compulsory license (PDF):
(DPD = Digital Phonorecord Disk. A CD if you’re in the copyright office and iPods are demonic magic to you.)
So you can record a cover version, but not your own version; in this case, lack of originality is a good thing.
Also, using the song in a dramatic work isn’t covered, so WKRP in Cincinnati only has the original songs Johnny Fever joked over in the bootleg tapes which are illegal to possess.
They can’t stop an another artist from recording it (if someone, including the copyright owner has already recorded it) but they CAN stop someone from performing it in most circumstances.
The composer/publisher is stuck with the compulsory licensing of phonorecords but there is no equivalent compulsory license for public performances. (Yes, there are some exemptions for non-public performances, broadcasts for the blind and handicapped, church services, etc.) Theoretically, you could record a cover of a song that rises to #1 on the radio charts, but if you go on tour you can’t perform it at a non-licensed venue. You can negotiate a license directly with the publisher, but performance licenses in the US are usually handled by the PROs (ASCAP, BMI, SESAC).
The following is about US law, the law in other countries will surely differ.
First. making such a statement, you have to define what you mean by “musician.” Under US copyright law, the composer/songwriter has a completely different set of rights than the performing artist.
Most serious composers sell their works to a publisher who then owns the copyright in the musical work. I will assume it owned by a publisher, but if not you can substitute “composer/songwriter” wherever I say publisher.
The publisher retains performance rights, including those on radio. It can stop anyone from playing it on the radio without a license no matter who recorded the particular version of the song. However, publishers are in the business of making money off their catalogs and they want the song to get a lot of play. So they contract with a Performing Rights Organization (PRO) like ASCAP, BMI, and SESAC to license the performance of their works to radio stations and others. The PROs typically sell blanket licenses that cover all the works in their catalogs. So, if the radio station has obtained a license from the correct PRO, there is little or nothing that the publisher of the song can do to stop them from playing it.
Separate rights belong to the owner of the copyright on the specific recording that is being played. Performers generally sign these over to a record label.
In the United States (and this is unique to the United States), the owners of sound recordings do not have any performance rights on terrestrial radio. They do have rights on the web streams (if any) of the radio station, however. That means that a terrestrial radio station may play a record to its heart’s content and not pay a penny to the performers or their record company. However, they have to pay the publisher. And there is nothing the performer can do to stop them.
So, perhaps the artists’ lawyers could catch the radio station in a technical violation, like, for example, not getting a license from a PRO because they thought they weren’t going to be playing music on an all-talk station or not properly licensing their web stream, but otherwise, they are pretty much out of luck.
Now, the specific case you may have heard of is the lawyers for the musical group Rush sending a cease-and-desist order to the Rush Limbaugh Show. The lawyers’ specific claim was that the Rush Limbaugh show was a “political broadcast” and that the performance rights licenses granted to the radio stations did not cover “political broadcasts.” They also claimed that the use of “Rush” music during the “Rush” Limbaugh show was an abuse of their “Rush” trademark. And finally, they claimed that Rush Limbaugh was implying a false endorsement from the band Rush.
Most observers believe that these claims are novel at best and perhaps somewhat tenuous.
Not any more. ShoutFactory has put out a version with most, but not all, the original songs.
I was just reading an article about Bill Withers (writer, performer, “Lean on Me”, “Ain’t No Sunshine”, “Just the Two of Us”) and it said that he has to give permission for any use of his song in movies/television. He denies permission for anything that is a sad scene. It also says that someone can cover his song and the cover can be used without his permission but nobody has done it “they don’t want to mess with me.”
I thought the “loophole” of using a cover was interesting. Might explain why Beyonce’s “Crazy in Love” made it into the Fifty Shades of Gray trailer. It was a cover.
Ah, good to know. The point I was making stands, though: Using a song in a TV show or a movie (or a play, I suppose) is a completely different license from just covering the song and selling CDs or iTunes downloads of your cover.
You still need the permission of whoever owns the publishing rights in order to use a cover in a movie as well as the permission of whoever made the cover. Bill Withers says that he signed away the publishing rights in his early songs like “Ain’t No Sunshine” and “Lean on Me” so he personally would no longer have any say.
I couldn’t find the exact quote that you were referring to, but maybe you misunderstood? Bill Withers, even if he stills owns the publishing rights in some songs, cannot stop anyone from recording a cover. But Bill Withers (or whoever currently owns the publishing rights) has to grant a “synchronization license” to anyone who tries to include the cover in a movie. The PROs (ASCAP, BMI, and SESAC) do not get involved in this business.