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Music and the Law: How to Obtain a License to Release a Cover Song

Attorney Brian Witkin.

Hit songs from the 1950s.

Recording and releasing a cover song can be a great way to showcase your musical ability and at the same time earn new fans by grabbing their attention with familiar songs. Cover songs can also be a great way to earn revenue when you release them on Digital Service Provider’s (DSPs) like Spotify, Apple Music, and Amazon music. Some covers have even achieved more success than their original releases: a couple notable examples include “All Along the Watch Tower” by the Jimi Hendrix Experience, written and first released by Bob Dylan, or Jeff Buckley’s “Hallelujah,” written and originally released by Leonard Cohen. So, a basic understanding of how to properly obtain a license to release a cover song is a good thing for any musician to know.

The Basics
Section 115 of the US Copyright Act sets the requirements for a Compulsory Mechanical License, compulsory meaning the copyright holder must issue the license (see exceptions below). So, anyone can record and release a cover song and the songwriter(s) can’t do anything about it, so long as certain requirements from Section 115 are met. However, before we get to the steps to obtain a license to release a cover song, a brief explanation of what a mechanical license is, and the different players involved will help give context to better understand the license required.

The Details
A common misconception is that notable recording artists or musical performers are the same people who write the original songs they are known for and perform. While this is sometimes the case, often the writer or writers involved are unrelated to the artist or band. This is an important distinction in the music business because the rights to a recording—or masters—and the rights to the underlying song itself—the composition—are completely separate and typically owned and administered by different entities. Record labels usually deal with recording copyrights, called a Sound Recording or SR for short. The labels typically license or own the copyrights to the masters and pay the recording artists a share of profits in exchange for the rights to market, distribute, and collect all monies generated by the masters. Publishers on the other hand represent songwriters and help administer the copyright to the compositions or the songs themselves called the Performing Arts copyright or PA copyright for short.

Like a record label, the publisher’s job is to seek opportunities for their song catalogues and, of course, collect and divvy out the monies generated (hopefully) by their efforts. A mechanical license is the right to reproduce songs on records, paid to the composition copyright owners. So how does an artist obtain the license? For physical products like CDs, vinyl, or downloads, the artist can obtain a license by sending a Notice of Intent to Use or NOI to the copyright holder of the composition.

To find the copyright holder you can search the Public Catalog of the US copyright office online. As discussed above, typically it’s the publisher who administers the composition. Publishing information is also readily available online; for example, the two largest performing rights organizations (PRO’s) BMI and ASCAP have a joint database called Song View that allows anyone to search their database for publisher information. Once you’ve ascertained who the copyright holders are, the specific requirements for the NOI can be found in detail on the US Copyright Office’s website (37 CFR § 201.18). Once the notice is delivered, the licensee is responsible for providing monthly accounting statements and payments to the copyright holder at the statutory rate, currently 9.1 cents per song under five minutes in length. A NOI or accounting is not required to release a cover song on streaming DSPs like Spotify because the DSPs themselves are now required to pay mechanical royalties directly to the new Mechanical Licensing Collective or MLC. The MLC was recently established by the passing of the Music Modernization Act to oversee collecting and paying out mechanical royalties for streaming sales.

You Can’t Do That
Finally, some important limitations about what a compulsory license does NOT cover. You may have noticed that we are only contacting the holders of the PA copyright, not the sound recording copyright holders. That’s because you’re creating a new sound recording of the song; when you obtain a compulsory mechanical license you are NOT obtaining a license to use any of the original sound recording. Similarly, the song needs to be released for release to the public for private use. This means releasing on DSPs, CDs, and vinyl etc. is covered because those are for private use. But a sync license (i.e., placing your song behind a visual medium) to create a music video or put behind a scene is a film is not covered. So, there are restrictions as to what you can do with your cover even once you obtain the compulsory license.

There are also many specific requirements for the song you record as well. For example, one important right the original songwriter has for physical and download formats is first use, meaning a compulsory license is not available unless and until the original writer publishes the song. This restriction prevents anyone from obtaining a compulsory license and releasing a song before the original songwriter does. The song you’re covering also must be a “nondramatic musical work” meaning it can’t have been created for use in a motion picture or dramatic work (sorry you can’t obtain a license to cover the SpongeBob SquarePants theme without negotiating directly with the copyright holder, and they have the right to turn you down flat out). You also can’t materially alter the song, like changing the basic melody lyrics or fundamental character of the song.

The Easiest Way
While the steps involved with obtaining a compulsory mechanical license can be complex, the good news is that there are third party companies that will handle all the license requirements for you for a nominal fee, and if you’re distributing to streaming DSPs only there isn’t much to do. If there’s any ambiguity as to whether your cover song meets the requirements to obtain the license, consider hiring a music attorney to give you a legal analysis and help navigate obtaining the license. So go out, record that cover song you’ve been wanting to and share it with the world!

About Brian Witkin
Brian Witkin runs a boutique entertainment law firm in San Diego. He is also a musician, music producer, and CEO of Pacific Records. Brian has spent nearly two decades in the record business and continues to be musically active as an artist, songwriter, and record producer. He is also a Grammy® Voting Member of the Recording Academy. Brian’s father, Joe Witkin, was the original keyboard player of Sha Na Na, who performed at the iconic Woodstock Festival in 1969.

Note: This article is for general informational purposes only and does not establish an attorney-client relationship. Every situation is different, and the general information contained in this article may not apply to your specific situation. The author and publisher assume no responsibility for actions taken based upon the contents of this article. Seek the advice of counsel for your specific situation.

©Law Offices of Brian A. Witkin 2021.

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