Playing a cover song live is one tool in a new band’s arsenal to get people’s attention. Having that song available to iTunes and Pandora audience increases that exposure exponentially. There is more than one way to get the rights to record a cover song, but the easiest is to get the mechanical rights through a company called The Harry Fox Agency (HFA).
HFA represents more than 46,000 music publishers, and has the right to grant licenses on behalf of its publishers to record songs to be distributed for money. Depending on the license, you can put your cover song on CDs, cassettes, records and even sell the music digitally in the form of Permanent Digital Downloads (PDDs), ringtones, limited downloads and interactive streams.
To record a cover song you will need to get the proper license, which is called a mechanical license. A mechanical license grants the right to copy and distribute copyrighted material. If you are a new band, and you don’t expect to sell a lot of copies of a song, you can use the super cheap and easy to use Songfile®. Songfile is HFA’s online licensing tool, you can use it if you plan to make 2,500 copies or less of your recording. It enables you to license for both physical (i.e. CDs, cassettes, etc.) and digital, including PDDs, ringtones, and interactive streaming.
Bands that are going to sell more than 2,500 copies can sign up with HFA as a commercial licensee, similar to record labels and online services. HFA issues licenses that cover most audio-only medium, but they do not issue licenses for audio/visual recordings like music videos.
The nice thing about using HFA is that not only do they issue the licenses for musicians to cover songs, but they also collect and distribute the royalties. There is no need to deal with more than one company.
Yet before you can get a mechanical license from HFA, you need to make sure your cover qualifies for a compulsory license. To qualify for a compulsory license the new version of the song has to follow a few rules:
It can’t be a derivative work. This means you can’t make major changes like rewriting the lyrics, taking out sections of the song, sampling a song or creating a new arrangement.
If you think your cover is going to be considered a derivative work, you need to go directly to the publisher of the work and ask them if they think it is a derivative work. If they do not, you can still get a compulsory license. If they do, you will need to get their permission before coming to HFA for a mechanical license.
According to Maurice Russell, Senior Vice President of Licensing, Collections and Business Affairs for HFA, you can tweak a song a little bit. And moving a song from one genre to another is not usually an issue. It becomes an issue when you start to change the melody or lyrics of the song or you add to the song and make it into a sample.
Since compulsory licenses only cover non-dramatic works, they may not apply to covers of complete works such as musical plays or operas.
As long as the work has been commercially released on a record and your cover song qualifies for a compulsory license (i.e. not a derivative work), you can get the mechanical license to the song and pay a statutory rate. Statutory rates are royalty rates, set by the government, which you must pay for each time you distribute a song physically or digitally. It does not matter how much you charge for the song, the rates are always the same.
Now as this seems like a hassle, bands might be tempted to record a cover song and not get the mechanical rights to distribute the songs. This is a bad idea. According to HFA, even giving this music away for free does not make it exempt from copyright laws. If a musician gets caught distributing copyright protected work, even for free, they can incur a legal claim that amounts to much more than what it would have cost to get a mechanical license.
It may not seem to matter when your band is small and unknown, but if you make it in the music industry people are going to check out what you have done in the past. If your goal is to be successful in the music industry, you better play by the rules.