(This seems to belong somewhere between here and GQ; I took a chance and figured I’d start it here…)
In 1999, the band I was in covered Shawn Colvin’s “Sunny Came Home.” I have a recording of my band performing this cover. Do I have the legal right to post the MP3 online, as long as I give proper credit to Ms. Colvin (and don’t post the lyrics)?
I’m askin’ because I decided to set up a Myspace page for my music stuff, and I’d really like to use that cover as one of the available streaming songs because it’s something that people are familiar with (and so they can judge how I compare to the original singer). But there are warnings all over the place that I can only post songs I own the copyright to, so for now I’ve just posted originals. Does the fact that it’s a recording of my band give me any rights to distribute it? Are covers protected under copyright law somehow?
Don’t worry, I know better than to rely on the SDMB for serious legal advice: I’m just wondering what experiences other Doper musicians have had.
I’m gonna throw my 2 cents in but this is from a semi-professional point of view. I work in the copyright industry but don’t know ALL the ins and outs of the law, especially since I’m in another country and some things will be different.
a) Unless you have contacted the owner of the song, usually the writer or publisher, you don’t have permission to even record your cover, let alone put it on the net where other people will have the ability to download it. Unless you want to get sued, I wouldn’t put the mp3 on your site without permission.
b) ****Does the fact that it’s a recording of my band give me any rights to distribute it? **
Without the express permission of the copyright owner you are not legally allowed to distribute your cover. If you had an agreement with the song owner you would be able to legally record and sell/use your cover version.
c) Are covers protected under copyright law somehow?
Again, if you have an agreement with the copyright owner that gives you permission to record their song, then you’re fine. Otherwise, not that I know of.
As I’ve already said, and you’ve mentioned as well, this is not legal advice, just my understanding of these issues. Hope it helps a little.
The way you said, “you don’t have permission to even record your cover” makes me feel the need to clarify: we didn’t record it in a studio or anything, we performed it live and a friend videotaped our show (for personal use only). The MP3 I have is the rough audio from that videotape. Are you saying that we shouldn’t have taped the live performance at all without permission from the artists we covered? (If so, we need to contact the Grateful Dead, too… :))
Also, regarding “Without the express permission of the copyright owner you are not legally allowed to distribute your cover,” more clarification: I don’t intend to distribute it, it would be posted on a site with streaming audio and I will not enable the “download” option (for any of the songs, even my own stuff).
Well, if you were pressing and distributing (even for free) records or CDs, the case would be pretty straightforward. You’d need a “mechanical license” from the rightsholder to each of the songs you intend to include. From the web site of the Harry Fox Agency, “the foremost mechanical licensing, collections, and distribution agency for U.S. music publishers”:
Basically, once someone has recorded and released a version of a song, it’s fair game for anyone else to record, provided they pay the stautory compulsory rate for a mechanical license, based on the number of copies, etc.
There are two wrinkles here – one is that you’re distributing via digital media, which means a digital license as well. The other is that your performance occurred at some place – a bar, a house, a theatre, a park, whatever. The “proprietor” of that venue must also have a public performance license from BMI and/or ASCAP covering use of live or recorded music, or else BMI or ASCAP is likely to go after them retroactively.
If you have live music being played, you most likely will have a public performance license to cover this type of thing. At least that’s my interpretation.
Well, it wouldn’t be the record companies, it’d be BMI or ASCAP, but yeah. And they’re actually pretty aggressive about it, from what I’ve heard. They have people whose job is to go around and check up on bars, restaurants, etc., and ensure that if there’s music playing, live or recorded, the business has a public performance license from the rights organization. Odds are you wouldn’t own a bar long without getting a friendly reminder from them, unless you scrupulously avoided providing any sort of live or recorded music – obviously, you can’t stop some drunk from standing up on his own and leading a crowd sing-along of a copyrighted song, but if you encourage/promote it, you’re technically on the hook.
Actually, it seems that the digital license is all that I need; it covers on-demand streaming, which is what I’m after.
Yes, I’m 99% sure that the bar had a public performance license. I remember asking about copyright stuff when the band first talked about including covers in our set. But the establishment doesn’t exist anymore, so ASCAP would have a hard time going after them if it turns out that the license didn’t exist.
Because the language at Harry Fox is so unclear regarding my specific situation, I’ve sent a letter to the first publisher/administrator in the ASCAP list (thanks, Seven!). I wonder if I’d still have to worry about this if my friend had videotaped someone else performing the song, and I wanted to stream that?
To answer your question, NO you have no right to post the song on the website or perform it for that matter. Now whether or not whoever represents the copyright holder, usually publishing rights companies like BMI or ASCAP, wants to send you a nice cease and desist letter is entirely up to them and you would not be able to do anything about it except comply. If you are comfortable with that then keep the song up there, I mean, they might not notice or care. But if you start making money off the song, they usually expect a cut.
> TWEEEEEEET !!! < ::: Moderator blows whistle :::
Look, Misnomer, you said yourself:
Asking a general question about what experiences other Doper musicians have had would be fine; but then you proceed to clarify your particular situation, further and in more detail, to differentiate your situation from their responses. If it walks, acts, and quacks like a duck… It looks to me as if you’re looking for legal advice in your specific case, not just asking about general experiences.
That’s a dangerous, as well as stupid (and I know you’re not stupid.) So, enough.
