Q&A:
Sent: Monday, August 14, 2006 1:12 AM
Subject: from Elaine in Tucson
Q: hi wonderful woman,
we miss your energy in Tucson, lemme tell ya. hope all is well with you! baldly, I have a question or two or three for you.
the last call girls (Kevin plays with them) is getting ready to head into the studio for their 1st cd. they play a few covers from Johnny cash, etc. so I am wondering about paying royalties if they wanna record some old rockers.
I thot there was a 20 year limit on copyright/royalties. i.e. if I wanted to record my own version of "the wall", by pink floyd, I did not have to pay royalties, as it was originally copyrighted in the 80s. however, ive been hearing about renewable copyrighting, which pays royalties to owners far beyond 20 years. what do I need to know about this, in your opinion? is there a place online where this is discussed? how could I tell if something was copyrighted and figure out how much it would cost if they wanted to record? I would like to know more, if you know how I can. and if this isn’t your cuppa, don’t hesitate to say so. I'm checking around on my own at KXCI. also, Amy [Goodman] is here on Oct 13! hope you are in town. she has a new book, called "static" from hyperion. thanks,
A: Hiya honey Elaine:
yes, this is exactly my cup of tea & bag. I do copyright and trademark work. So you came to the right attorney.
Basically, you don't need to hire a lawyer for this.
The Last Call Girls (love that band!), you, or anyone can make a new recording of anyone's composition, providing they have already published it. Its called a mechanical license. Under the Copyright Statute, if they’ve already published it, it is compulsory to let others have a mechanical license. It is called a compulsory license and is covered under the US copyright statute, which you do not need to read right now just for this. 17 USC 115. You can do your own arrangement of the composition; however, if you make any major modifications (“basic melody or fundamental character of the work”) of the music or lyrics, you may be creating what is called a derivative work. The definition of derivative would be fine tuned case by case, but use your common sense and think Weird Al or 2Live Crew's Pretty Woman as examples of derivative works. (http://supct.law.cornell.edu/supct/html/92-1292.ZS.html) That is not covered under compulsory licensing and requires permission from the copyright owner. Usually, what you’re looking for under compulsory licensing is more like your own version of the work, for example, like Dave Mathew’s or Jimi’s version of Dylan’s “Watchtower.” Both of those versions are true enough to the original chords and lyrics to not be called a derivative work.
Ya’ll need to go online to www.songfile.com -- that's Harry Fox Agency's place for folks who are releasing 2500 or less units. You can handle the whole thing online with a credit card for each song. I assume the LCGs are cutting 1000 units (that's typical for a local or regional indie band). So, for e.g. 1000 units @ with one Johnny Cash song. The current statutory rate is $0.091 or 9.1 cents; it just went up in 2006. See this chart for the exact rate amounts. http://www.copyright.gov/carp/m200a.html. Note that if you go over the time limit there are some extra fees. So, generally, for the 1st 1000 CDs, you pay songfile.com $91 bucks for the Johnny Cash song. You pay the publisher actually, and that info will be searchable on the songfile.com website. Its all there, unless you are dealing with some obscure song. If its not there, you have to search ASCAP, BMI, SESAC, to see if they have that songwriter or publisher. If you can't find the songwriter or publisher of a song, check out the copyright office's compulsory licensing help at http://www.copyright.gov/circs/circ75.pdf. Sometimes you have to go to a small songwriter who might not be hooked up w Harry Fox et al, and, while there, you might as well ask for a rate that is lower than the statutory rate. Nada to lose. I've done some of this work over the years. With the Viva La Diva! Lisa Otey & the Desert Divas Concert Video I had to get every publisher personally into negotiations because it was a visual audio project, a film, which isn't covered by compulsory licensing. Compulsory licensing is only for audio works. It is best to have an attorney or an experienced clearance person handle those "synchronization" licenses for audiovisual works. In any event, if you or the LCGs are thinking of including a little DVD video or enhanced CD video in your package, it should either be an original tune or you must negotiate directly w/ the publisher/s. You should hire me to do that part. And don’t ask your attorney at the last minute to do something like that, or do the manufacturing first and think you’re going to get a license after the fact. You might not, and then, oops, 1000 CDs or DVDS in the pooper.
Remember to file your notice of intention for a compulsory license and pay your royalties before or within 30 days after making, or before distributing the CDs. If you fall outside these time limits the publisher or copyright owner is no longer subject to the “compulsory” part of compulsory licensing. They can deny you, and you’ll be throwing 1000 CDs in the garbage. When you go through Harry Fox songfile.com, the notice is all done for you. The notice gets more involved if you can’t find the copyright owner at songfile.com and the above copyright office website can give you more instructions. Generally, the publishers want to make the money, but don’t take the risk. Its rare but has happened, and the courts have upheld it, where the publisher denies the mechanical license and isn’t compelled by law because the notice wasn’t timely filed.
If ya'll have any matters that require an attorney, I’d appreciate the business. I am now putting together a site called www.theslidingscale.com -- its a “working attorney for working musicians” site. my service rates will slide down to as low as $100 per hour (for working musicians like LCG etc. or non profits). That rate is only about 15 bucks more than the hourly rate for an auto mechanic, about the same rate as a web designer, life coach, or therapist, and only $40 bucks more than what they charge to cut a lawn around this working class neighborhood in the middle of Staten Island. Can’t we all just get a lawn?
big hugs all around, love, Kathleen
Law Offices of Williamson & Young, PC 2006 Photo by Kathleen Williamson ©2003