Can We Do a Book About the Rolling Stones?

Dear Rich: I am a small publisher with a writing background who wants to release an e-book covering the 50th anniversary of the Rolling Stones. I have asked many experts three questions: who is their favorite Rolling Stone? What is their favorite Rolling Stone song? and What is a memorable experience that they had regarding the Stones and their songs? I plan to publish the findings in a e-book and sell/release it for download. My questions are: (1) Do I have to ask the band's permission to release the book? (2) If the company decides to sell the book, do we have to compensate the Stones? (3) Am I okay to publish this if I dont include any copyrighted logos/materials etc in the publication? The Dear Rich Staff has decided that its favorite member of the Rolling Stones is Keith Richards because we loved his autobiography, he set the standard for all rock and roll guitar playing, and because if we find certain old pictures of him, he kind of reminds us of the way we wanted to look back in the day. (Of course, our second favorite Rolling Stone is Charlie Watts because he is the best dresser and drummer in rock and roll.) Our favorite Rolling Stones song is You've Got the Silver because Keef sings it but if you're looking for tracks that Mick sings, then it would be Wild Horses or Angie. Our most memorable and most depressing Rolling Stones experience was the so-called "Inflatable Penis" tour in 1975. We saw the show at Indiana University Convention Center and the setlist was awesome. But it was the first tour that the Stones used props on stage and we remember thinking at the time -- maybe it was the Hoosier audience, the awful sound mix, or maybe it was the sad use of the props -- that this was the end of rock and roll. And of course, we were correct about that.
Right, you had a question. If you don't use any copyrighted materials owned by the Stones -- lyrics, photographs, etc., --  then you won't need to ask permission or deal with compensation. If you do use some limited excerpts or clips, you may be able to excuse that use under fair use principles. For example,  under U.S copyright law, you can probably get away with thumbnail reproductions of album covers as a fair use. You're probably fine to use Rolling Stones logos and trademarks because your uses are strictly information/editorial and permissible under trademark law. However, we think you are best avoiding the use of of logos (such as the logo reproduced above) on the cover of the book as that may imply endorsement by the Stones.

What's the "Right" Way to Post Cover Songs on YouTube?

Dear Rich: My band had a nice show at the Freight and Salvage and we'd like to post some YouTube video but all but one of our tunes is a cover song.What's the current custom on that score on YouTube?I've peeked at some stuff on the web about this, but am not getting very clear answers. The whole YouTube ethic seems to be post and ask forgiveness later, but I'd like to just do it right, if there is a "right" way. Remember the good old days when the "right" way to promote a band was to bribe a DJ or the person at Tower Records who reported to Billboard? But what happens now that radio programmers are out of the picture and record stores owners are MIA. Did digital music wreck the whole payola thing? Or is it more of a crowd-sourcing activity now -- like you bribe folks for YouTube views? Or you pay to get "Likes" at Facebook?
Right, you had a question. The short answer is to give up on doing it the "right" way. The proper way to post a video of a cover tune is to obtain a 'sync license' from the owner of the song -- usually a music publisher that owns songwriting rights. The chances of you, as an unsigned artist, accomplishing that task would be about as likely as obtaining John Lennon's tooth. (BTW, a book on celebrity teeth -- Keith Richards call your dentist -- is apparently available in Canada.). It's for that reason everyone including an aspiring Justin Bieber, apparently posts covers without permission. (Note, that all may change if new punishments are adopted.)
We're talking about covers, here ... YouTube does have a means of locating videos that use major label recordings -- for example if you use a Prince song as a soundtrack for your child's dance routine. YouTube seems to possess digital fingerprints for pre-recorded pop tunes because when we posted a video of our commute to Nolo and included a track by everybody's favorite, Rockwell, we received a notice within hours of posting. YouTube had found unauthorized material on our video (and as punishment was going to run ads over our video). YouTube reserves the right to take down our video but in the interim, the company apparently divides the advertising revenue with the rightsholders -- music publishers and record companies. We're pretty sure YouTube doesn't have similar method for detecting cover versions -- that is, when someone else performs a Prince song. Of course, these unauthorized uses could still be located via old-fashioned text searches or spot scanning of videos. And songwriters who discover covers of their material can still issue a DMCA notice to YouTube (although you don't hear much about that practice these days). So, in summary, the 'post now, deal with it later' approach is the default mechanism for covers.
What about Limelight and Harry Fox? Harry Fox and Limelight are companies that provide a means of obtaining a compulsory license -- the right to release CDs and MP3s of cover songs. These licenses do not apply to audio-visual works.

Eat Pray Ask Permission?

Dear Rich: I'm interested in knowing if you have ever encountered clearing an "inspired by" situation. For example, I have written a piano solo inspired by the novel, "Eat Pray Love." I have not put that information on the cover of the piece because myinstinct tells me "Eat Pray Love" would need to be cleared. The Dear Rich Staff kind of missed the boat on Eat Pray Love. It's not that we don't like Chicklit or RomComs or Julia Roberts (We felt bad for her when she broke up with Kiefer Sutherland ... and then felt happy for her when she started dating Jason Patric because he was so great in that Kathryn Bigelow vampire movie). Anyway, we're glad you found the movie (or book) inspiring enough to write a piano solo. (This movie might inspire us to write a song, however.)
Right, you had a question. From a purely legal POV, there's nothing preventing you from calling your composition Eat Pray Love or from stating that it was inspired by Eat Pray Love. Many artists have named compositions after books and films (and vice versa). But you will run into problems if you imply that the owners or creators of the book or movie somehow endorse what you're doing. That might be the case if you have included an image of the book cover or a picture of Julia with your sheet music or performance. You also may run into problems if  buyers are confused with the song that's become associated with the movie.

Using Pop Songs in Videos

My daughter (age 16) and her friends regularly make films and incorporate songs. How hard is it to get releases from established artists like the Rolling Stones, Hoobestank, Katy Perry etc,, particularly if the films are already done?It would be relatively difficult to obtain permission to use recorded pop songs on your daughter’s videos. There are two copyrights at issue and each requires permission. As we've discussed before, you would need a sync right from the music publishers (owners of the composition) and what's sometimes called a master use license from the record companies (owners of the sound recordings). We doubt whether it would be worth the time to go about attempting to do this, and even if you could get in contact, the fees would likely be prohibitive.
A different approach. Let’s start with another question: What does your daughter plan to do with these videos? If she wants to share them with friends and have limited private showings, there probably wouldn’t be an issue especially because the copyright owners would never learn of the use. If she intends to place the videos on YouTube, one of three things could happen: (1) nothing, (2) the song owner would issue a DMCA notice, in which case the video would be removed by YouTube (unless you fought over the issue based on a fair use claim -- see below), or (3) YouTube would flag the video, send you an email stating that it thinks you're using unauthorized music and then run ads along with the video (which is what happened when the Dear Rich Staff posted a video with one of its favorite 80’s pop songs). By the way, the person you can thank for the latter alternative is probably Stephanie Lenz who posted a 29-second YouTube video of her kids dancing to “Let’s Go Crazy” by Prince and then, by challenging the DMCA notice -- because the label failed to consider fair use -- she made it more difficult for labels to send out DMCA notices.

DISCOUNT AT LIMELIGHT.The folks at Limelight, the mechanical licensing utility, are offering a 15% discount on mechanical licenses. If you want to check it out, the company has a special discount code: THANKSRICH15. The 15% discount is good through the end of October, 2011 (and no, FTC, we don't get compensated.)

Can You Be Sued Over What's in Your Digital Music Locker?

Dear Rich: Can a music service like Amazon's Cloud delete tunes that I upload? Cloud services or "music locker" services can (and are obligated) to delete infringing copies of music if requested to do so by a copyright owner. At least that's the position taken recently by the district court in Capitol Records v. MP3Tunes LLC.
Backstory. MP3Tunes offered a cloud based service in which people could purchase songs and place them in their digital music lockers, or they could upload songs they owned, or they could search for versions of the songs they owned online (including unauthorized versions).
MP3Tunes received DMCA notices from record labels and removed user links to the infringing songs but the company failed to delete the infringing copies from the user's music locker.
Here comes da' judge. The district court ruled against MP3Tunes for failing to remove the infringing content from user's music lockers, although that ruling was considered a "hollow victory" for the labels because the judge refused to grant the label's request to remove "MP3Tunes' safe harbor exemption. As long as MP3Tunes removed links to infringing material and deleted infringing content as requested by the copyright owner, the company could take advantage of the DMCA's so-called safe harbor.
Rock Me Amadeus. We hope you're not downloading unauthorized Falco recordings. We got in a nostalgic mood the other day and Spotified some great Falco tunes. Funny thing, Falco doesn't sound nostalgic at all. So sad he's gone. (And don't forget one of our favorite-ist Falco lyrics.)

Can I Sample Johnny Cash Beat?

Dear Rich: So, I have a friend that sampled a beat with Johnny Cash. It's a hip hop beat and I asked if I could use it to rap to. I asked him about legalities which apparently he knows nothing about. He mentioned another guy was rapping to it also and making money and just to give him some credit and he'd be fine. I don't know how hard it is to get some kind of "cleared" status on the song, but my question is if there was a problem who would get it in trouble, the beat maker, or the singer? If the copyright owners learned of your use, both of you. Record labels and music publishers usually take the attitude, "Sue everyone. We'll sort it out later." If substantial revenue was generated by the unauthorized use, the person who earned that revenue would of course be the most "promising" target.
What are you doing wrong? Start with the premise that both of you are infringing: the beat maker made an unauthorized derivative sound recording and may have infringed the underlying composition. The singer would be providing an authorized performance and (if duplicating copies), unauthorized reproductions. Of course, whether anyone hears your sample, recognizes it, and bothers to pursue you is another matter. If you're simply using it to perform locally, or handing out some privately-pressed CDs, we think it's unlikely to cause a problem. But once it reaches a national stage and things go viral, things would likely change. (As you can imagine, it's tough for an independent artist to get sample clearance.) We've written an article explaining when clearance is needed, and another article explaining how to get sample clearance. We've also talked about sampling law in previous posts: check out the basic rules and some recent cases. Our Music Law book also describes the ins and outs of sample clearance with all the required forms and contracts.
He walked the line. BTW, Johnny Cash has been the subject of authorized hip hop remixes and unauthorized releases, as well.

'Sup With Compulsory Music Licensing?

Dear Rich: I was wondering if you could shed some light on compulsory licensing as it applies to music. I guess what I want to know is why the creators of nondramatic musical compositions aren't granted the absolute control over their work that other creators seem to have. It seems a strange kind of a loophole to me, but as I'm not a lawyer perhaps there is some obvious point that I'm missing. For readers not familiar with copyright jargon, a "nondramatic musical composition" refers to just about every song ever written except To Dream the Impossible Dream (and other songs from theatrical or operatic productions). A "compulsory license" is an arrangement in which permission is not required before using someone else's copyrighted work, provided that a fee is paid.
Section 115A. Under Section 115A of the Copyright Act, a music publisher must permit you to record any song that has previously been recorded and released to the public. In other words, if the songwriters never recorded their song, or if it was played on TV or in a movie but never released on a sound recording or sold as an authorized download, you cannot use the compulsory license. Also, you cannot use the compulsory license if you change the basic melody or fundamental character of the song. For example, a singer cannot alter a song’s lyrics without permission. That said, many people change elements of songs without a problem (as we mentioned in this previous entry). Finally, this license does not include the right to sync a song with a visual such as a video; it's only for the sale of recordings on CD or by download. You can learn more about how to obtain a compulsory license online (or in our Music Law book.)
License or loophole?  There are others who feel the way you do but the Dear Rich Staff is not among them. We've written songs and we've recorded cover songs in our life and having a simple compulsory license program, especially like the ones at Harry Fox and Limelight, allows responsible musicians to pay for the right to record other people's music. It also makes it much easier to get paid for songs. It's possible that in the old days, the compulsory license may have been the way for a cover artist like Pat Boone or Elvis to have a hit from someone else's songwriting. But we believe that a hit is a hit, and songwriting -- whether the writer covers the song or someone else does it -- is usually the most lucrative aspect of the music business.

Wants to Invest in a Band

Dear Rich: Myself and a partner are considering investing in a band. The band is pretty far along, playing 2000 seat venues, recording their first cd, and seemingly taking success very seriously. They need funds to go to the next level and we are comfortable getting involved. However, the zillions of music industry contracts/guides out there do not touch on contracts protecting an investor buying a percentage of the band's entire business. Can you steer me toward something like this? I am looking for specific contract templates, along with what-to-watch-out-for insight. Investing in a band is the same as investing in any other business (which is why you're probably not finding paperwork specifically geared to bands). So lets take a look at the three things required to invest in a business: (1) a formal business entity -- that is the band must be a partnership, LLC, or corporation (preferably one of the latter two), and (2) an agreement between the owners of the entity formalizing your investment (for example, a stock agreement), and (3) some knowledge of the industry in which you are investing.
LLC or corporation. We recommend that the band form an LLC or corporation because investors in those entities have limited liability. That way investors will be shielded if the band throws a TV out of their hotel window and it lands on someone's Ferrari. These entities are also better suited for making investments than a partnership. There are plenty of self help books and forms, and online programs that explain how to form and invest in LLCs and corporations, though our hearts are with the Nolo products (insert FTC disclaimer, here).
Why it matters that you learn about the industry. Every industry has its quirks and the music industry has more than most. You should take a basic primer in music copyrights and trademarks because the assets of the band are concentrated in those intangibles. You'll probably want the songwriters in the band to contribute their songwriting copyrights to the band entity. However, that's not something they're obligated to do. So, before you drop your money into the band's piggy bank, you should probably be sure that the assets placed into the entity, reflect the money-making features of the band. And of course, it's probably in everyone's best interests for you and your partner to have your own attorney and the band to have different representation. That will go a long way to prevent a post-breakup challenge to the agreement.

Compulsory Notice Questions for Ballet CD

Dear Rich: My boyfriend and I have recorded about 30 tracks to make a ballet class CD (my boyfriend is a pianist at the city ballet). All songs on the CD are movie songs and have been previously released to the public on a sound recording such as a CD or record. He initially learned the basic melodies from sheet music, then over the years enhanced the songs with his own progressions, harmonies, may have added a little jazz improv in some of them. Since the CD is for a ballet class, he adapted the length (shortened or extended) and tempo to fit ballet class exercises. My first question is: Based on what I described above, can I take the Notice of Intention to Obtain a Compulsory License route? My second question is: In three of the tracks, my boyfriend did something unconventional -- for example, in one of the three tracks, he played 16 measures of the theme from Charade, then he played 16 measures of Chim Chim Cher-ee from Mary Poppins. then he ended the track by playing the same 16 measures of Charade. Would these types of formats not meet the requirements for a compulsory license? My last question is: some of these songs were from musicals, but films of these musicals were made. Should I be concerned about the songs not meeting the "non-dramatic musical work" requirement? Sorry, your reference to Charade made us search our iTunes database for our Henry Mancini tracks. What a great movie composer. We have a friend who gives us obscure Henry Mancini recordings and as much as we love Pink Panther and stuff like that, he's is so much more than that -- for example, the tracks from the Peter Gunn TV show equaled and excelled the more well known theme music.
Right, you had a question(s). Yes, you can use the compulsory notice for music that includes some improv and personal progressions. It's true that major revisions to a song require permission, but practically, publishers don't really care about what you do between the grooves provided you pay the toll (9.1 cents per track).
As for your second question. If you're using two tunes on one track, you have a few choices: you can pay both publishers 9.1 cents (again, they won't care what you're doing); you can pay only for the dominant/primary tune that you're using and hope that the other publisher doesn't hear (or care) about your "quoting" of the melody. (The other publisher is unlikely to learn of it unless the title is included in the CD notes -- for example, "Track 5: Charade/Chim-Chim-cher-ee.") And finally, you can try to negotiate with both publishers for a lower rate (probably a waste of time unless you're a major label.) We think you're probably fine with the second choice.
And your third question. The compulsory license is for nondramatic uses so your use on a CD would qualify. A dramatic use would be if you wanted a license to perform the music publicly as part of a show.

Sampling: Comparing Beasties and George Clinton

Dear Rich: I am a music publisher and have a sampling question. How would you describe the essential difference between the opinion in Newton v. Diamond as compared with Bridgeport Music, Inc. v. Dimension Films? If Bridgeport had been decided first, would the judge in Newton be obligated to render a different decision? No, the Dear Rich Staff doesn't think so. The two decisions referred to are both sampling decisions but they actually address two different issues. Sampling music usually involves two copyrights: one for the songwriters (the musical composition); and the other for the arrangement, production and recording of the musical sounds (the sound recording copyright). The record company usually owns the latter, a music publisher usually owns the former.
Newton: A Lawsuit Over the Musical Composition. In Newton (the case involving the Beastie Boys' use of a James Newton flute sample), the Beasties paid for a license to use the sound recording, but they did not obtain a license to use Newton's underlying composition. When Newton sued, the court ruled that the borrowing of the composition was de minimis (too small to matter).
Bridgeport: A Lawsuit Over a Sound Recording. In Bridgeport (in which a film company used a George Clinton/Funkadelic song sample in a movie soundtrack), the defendants were sued solely over the failure to obtain the sound recording license. The court asked the same question as you, and answered as follows:

"[This case] raises the question of why one should, without infringing, be able to take three notes from a musical composition, for example, but not three notes by way of sampling from a sound recording. Why is there no de minimis taking or why should substantial similarity not enter the equation. Our first answer to this question is what we have earlier indicated. We think this result is dictated by the applicable statute. Second, even when a small part of a sound recording is sampled, the part taken is something of value. No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the "song" but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one."

Mental, eh? Unfortunately for musicians the takeaway is that based on Newton and Bridgeport, all sampling of sound recordings requires permission, whereas some sampling of compositions is excusable. We can't say we agree.

Can We Sample Tequila? The Song That Is ...

Dear Rich: I am representing a band that has written a song that uses 4 seconds of the song "Tequila" in a break. The song is not sampled, but rather the melody is played by the lead guitar and the word "tequila" is sung once. The band expects to release the song for widespread commercial use. I have already determined that "Tequila" is protected by copyright and the publisher is registered with BMI as I recall. Do we need to get a license or sample clearance? Is there a fair use or some other exception that might apply? The good news is that you haven't sampled the Tequila recording. That eliminates the pesky issues raised by the 6th Circuit in this harshy-harsh sampling case. (They proclaimed that all digital sampling required a license no matter how short or inaudible the sample!)
Analog Not Digital. Since you're not doing any digital sampling, we think you're in a better position to go without permission and claim two defenses:

• the de minimis defense. Four seconds of Tequila is not an infringement because the use is so minimal, or 
• the fair use defense. You are using the song for transformative purposes (perhaps commenting on Tequila's retro-classic cultural significance, or referencing Tequila to make a point about alcohol consumption.)

But like Tequila, you may want to take our advice with a few grains of salt. We're discussing defenses and if the owner of the song disputes your position, a judge will have to decide the matter -- always an expensive proposition. Some other questions to consider: Is the band under contract and must they declare the samples to their label? Is the copyright owner likely to learn of your use? Need some more on sampling? Check out this article.

He Wants to Avoid Paying Taxes for Band

Dear Rich: I just purchased your book online called "Music Law: How to Run Your Band's Business." I Paid For Rush Order As I Need Advice Before Friday And Not Sure My Book Will Arrive On Time So I Took The Chance Of Writing To You With Fingers Crossed You Read This And May Have An Answer For Me. My Husband Is A Professional Musician And Tours A Few Times A Year. When He Is Home He Just Plays Gigs Around Town In Different Bands And Plays At Church Every Week. He Does Not Have A Trademarked Or Serious Band Or Anything Like That Himself. He Usually Just Plays With Other Bands When He Gets Off Tour And They Pay Him By Check. They Give Him A 1099 At The End Of The Year If He Makes Over $600 With Them. My Husband Is Set Up As A "Section C" For His Taxes. My Husband Has Never Booked A Band And Does Not Really Know Anything About Signing Band Contracts For Club/Venues. A Club Just Approached Him To Play And Put A New Band Together For His Club. My Husband Is Supposed To Go To The Club On Friday And Sign A Contract. They Want Him To Play At The Club About 2 Times A Month. The Pay Is $800 Per Band And They Only Pay By Check To The Person Who Signs The Contract. I Am Very Nervous About My Husband Signing And What He Is Opening Himself Up To In Relation To Taxes At The End Of The Year. If He Signs The Contract He Will Be Responsible For The Entire Band Taxes For That Year-Correct? (If They Play 2 X Month For 1 Year That Will Be $19,200 Total Band Taxable Income.......$3,840 Per Individual Band Member). How Can He Book Gigs And Protect Himself And Not Get Stuck With Paying All The Taxes For The Entire Band And What Are His Options? Since you're in a hurry and we're in a hurry, we didn't bother to uncapitalize your question but we are curious about this grammatical aberration. Not to be rude, but what's up? If using all caps in email is like shouting, is this less than shouting but still intended to convey a sense of urgency? Curious as many are, but FYI, it makes it a bit tiring to read.
Right, you had a question (and you're in a hurry). Your husband should take the gig and take the payment. You won't have any problem with your taxes because your husband can deduct all of the payments he makes to the other band members (on his Schedule C). After that, he would only have to pay taxes on the remainder (which should be his payment). If he pays the other individual musicians more than $600 in a year, he must issue 1099s. That's not hard to do (we've done it ourselves and you can even automate the process online).  The Music Law book explains all this and you'll have plenty of time to read it before tax time.

He wants to use image from concert video

Dear Rich: I have some old Who videos from a concert about 35 years ago that I took one frame out of and made my own electronic art out of it. While what I created is quite different then the original frame, it is the foundation of my art picture that I am left with. If I were to hang that up or sell it, would I be violating copyright laws. It was from a very old concert and the frame that I used as a my foundation for what I created could have come from anywhere. And, if I am violating copyright, is it really enforceable and/or do you think it would be an issue with anyone if I were to sell this edited image? Short answer dept. No we don't think your use is likely to become a legal issue. As we explained in yesterday's entry, using a single still can constitute infringement though it's usually not likely to result in a lawsuit. The concert film is most likely protected under copyright law as the Who haven't been around long enough to trigger any of the traps that would drop the movie into the public domain -- for example, if it was published before 1964 and not renewed.
Fair Use Dept. It sounds as if you have the makings of a decent fair use argument (although we'd prefer if you didn't get embroiled in that type of dispute). Here's a link to compare your use to other visual arts fair use cases.
Staying out of trouble dept. Are you selling only a single print?  Problems are more likely to develop if you market the work in bulk. So if you're paranoid about being hassled, don't mass produce your prints.

Does a music producer own the copyright in a band's sound recording

Dear Rich: Help us out here. My band wants to register the copyright in our recording but we're not sure who to list as owner. Is it the producer, or the band, or do we split it? There's no definite answer for your band because determining the ownership of a sound recording copyright (as with a songwriting copyright) depends on the contributions made by each person. Usually, yes, a producer is co-author of the recording because the producer performs a wide range of tasks including performing, arranging, and mixing. (That's why they get paid the not-so-big bucks.) On the other hand, as happened in a case involving the White Stripes, a co-producer who set up mics and chose reverb settings did not have a claim to copyright because his contributions were not considered sufficiently creative. And of course, just because you produced or played on the recording, doesn't mean you own copyright -- for example, record companies routinely require producers and musicians to assign all their rights back to the company. This guarantees that the record company can claim sound recording copyright. P.S. Here's one producer we love.

How do I register sound recording and songwriting copyright?

Dear Rich, I recently recorded a CD with my fiance and am trying to figure out how many applications I should submit to the copyright office. Here's a breakdown of contributions for this CD/project... I wrote all 10 songs (music and lyrics), except one which was written with my fiance. I recorded/arranged/mixed most of the music. Vocals and another instrument (performed by my fiance), were recorded at her father's studio. Her father mixed the tracks (that I had put together) with these additional recordings (vocals, etc.), then he mastered the CD. So, should I submit one application for music and lyrics for songs 1 - 9 (for myself), another application for the 10th song (my fiance and I), then a third for the sound recording including all three of us? Wow, with all the turmoil and terror in the world, the Dear Rich Staff is so happy to answer a question from some kissing musicians on Valentine's Day.
Right, you had a question. You need only submit two applications, one for the songwriting (musical composition/performing arts) and the other for the recording (sound recording). We think that the Form CO is easiest and here's a video explaining how to fill it out for your songs. You're allowed to list songs by more than one writer on a single form provided that one writer is the same for all of the songs. Here's a circular about registering musical compositions. Next, you would use a Form CO and claim sound recording copyright (here's a circular). Although we didn't think it applies in your case, you can use just one Form CO for everything if the same person owns the copyright in the songs and the sound recording. This could happen, for example, if your fiance and her father assigned you their rights in the sound recording. We hope your wedding plans work out and speaking of V-Day, have you seen this patent application?

CLA's 28th Annual Music Seminar (Resources)

Attendees, here are the resources mentioned at my talk:
U.S. Patent and Trademark Office
Simple Trademark Search
Register a Song Copyright Using Form CO
Trademark (TTAB) Decisions
U.S. Copyright Office
Form CO
Harry Fox
RightsFlow/Limelight
iStockphoto
Simple Photo Release for Use at Website
Stanford Fair Use Site
Nolo

How do I sell song to McDonald's?

Dear Rich: I am helping run a budget music studio in Chicago, and I stumbled upon an old recording of a hip-hop artist doing one of the most hilarious food songs I've ever heard titled "mikdonalds." Basically my goal is to purchase the rights to the work, create a funny video and take it to the McDonalds marketing firm, which is located here in Chicago. I am somewhat under the impression that the only way I can make this work is if I am also in control of a publishing company... is this true? I'm also wondering if it is possible to create a contract that says something along the lines of "you give us X amount of money to make a video, then we post it on youtube, then we are paid X amount of dollars for every... 10,000 hits." To be honest this seems like a much more efficient marketing campaign than just some commercial on CBS. We don't know about you, but sometimes the Dear Rich staff lays in bed wondering if the apostrophe is still part of the MickyD mark -- y'know considering how domain names and Internet usage have decimated so many grammatical symbols. (Answer: Yes, though it was strange how hard it was finding the company name on their homepage.).
Right, you had a question.  Assuming you own the copyright in the song, you can make a deal with McDonald's without creating a music publishing company.  If you license the song, instead of assigning it, it wouldn't hurt to create a music publishing company; its primary function would be to collect money from performance rights societies in the event the ad is played on TV or on the radio, etc.
What about the contract? We think if McDonald's wants the song, they can work out any kind of deal, including one like the contract you suggested. However, we don't think that the contract is your biggest concern, right now. The major hurdle is convincing McDonald's to use the song. Most people in your position have a difficult time getting in the door to sell songs and for that reason, you may have a better time making a viral video hit and hoping McDonald's comes to you (and not with a cease and desist letter for diluting their mark). If McDonald's does express an interest, they'll either have a contract for you (time to hire a lawyer to review it) or they'll ask you to prepare one (time to hire a lawyer to write it).

Recording a Lindsey Buckingham Song

Dear Rich: I have friends in a band in Norway and they want to release a song written by Lindsay Buckingham. They plan on releasing 1000 CDs and 500 vinyl singles. Does the label ask for permission or should the band? We think your friends should look at their recording contract (if they have one) to determine who has responsibility for paying for the rights. In the U.S., the label typically pays (and then charges it to the band somehow).

Rights Organizations. In the U.S., the band would have a fairly easy time sorting this out. They could either pay the compulsory license fees and follow the instructions issued by the Copyright Office. Or they could take the easier route of charging the fees to their credit card at the HFA site -- you just set up an account and tell them how many copies. HFA instructions note, however, that the license is only for recordings distributed in the U.S. In Norway, rights are commonly sorted by Kopinor, and your friends might want to check their website for assistance. Other European rights organizations are shown here.

Small Correction Dept. You spelled Mr. B's name as Lindsay; the hypervigilant Dear Rich Staff reports that it's actually the more common male variant, Lindsey (placing #834 among male names -- compared to #1211 for Lindsay). 

Can A Songwriter Negotiate for Mechanical Royalties?

Dear Rich: If the owner of a song copyright for a song that's not available through Harry Fox is directly contacted by a band wanting to release a cover of the given song, is there anything that limits how much compensation the copyright owner can ask for? The Dear Rich staff are big fans of compulsory mechanical royalties -- the rate that an artist or record company has to pay to cover somebody else's song. Right now, the Copyright Office rate is 9.1 per song. So, if you made 10 CDs of (I Can't Get No) Satisfaction, you'd owe Keith and Mick $.91 cents. And best of all, you wouldn't have to call up Keith and ask for permission (and pray that your telephone call doesn't trigger Keith's "red mist" like when someone cut into his precious shepards pie). (BTW, Harry Fox is a company that enables you to pay for mechanical royalties at their website;Limelight is another.)

Historical Digression Dept. They're called mechanical royalties because back in the day when player pianos were the rage (and they were crazy popular up until radio fully arrived in the mid-1920s) the makers of piano rolls didn't pay songwriters because they argued you couldn't "see" the music on a piano roll like you could see it on sheet music. Songwriters got the law changed so that they got paid for 'mechanical' versions of songs (regardless of whether you could see the musical notes). The mechanical rate has always been a few pennies (back in the days of the Beatles, it was two cents) and in the whole history of the music business, artists and record companies never had to pay more than a dime per song per copy.

Right, you had a question. It's possible for the artist to pay the songwriter less than the government rate. That happens a lot with record deals where the record company pays less -- typically 3/4 of the compulsory rate (unofficially known as "the three-quarter rate"). But paying more for a compulsory license seems kind of kooky. And we should also mention that: (1) this rule is for cover songs--new versions of already published songs and (2) your cover shouldn't materially alter the composition. 95% of covers don't -- they keep the basic melody and chord structure even if they create a new arrangement -- and for the remaining five percent (think Devo's version of Satisfaction), they're probably okay anyway but keep in mind that a songwriter could arguably refuse if the cover materially altered the composition.That's because Section 115 of the Copyright Act provides that the cover arrangement "shall not change the basic melody or character of the work, and shall not be subject to protection as a derivative work...except with the express consent of the copyright owner." You can read more about the process here and here.

Can video artist collect royalties from MTV UK broadcast?

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Dear Rich: A friend and pro photographer made a music video for a friend's band which is now going to be broadcast on MTV Britain. She wondered whether she can collect any royalties from this? This seems like a money-making situation. Wow you sure got us thinking about some of our favorite music videos, like this one by A-ha, and this one by the Beastie Boys, or one of our favorite overlooked (and overcooked) rock videos as shown above. (Spoiler alert: heads explode). (And y'know the DR staff has appeared in a couple of music videos, too!).

RIght, you had a question. Funny how deceptive the music business can be. You'd think that the director of a video that's broadcast on MTV would receive some kind of a check in the mail even if it's a small one.Not! Though the songwriters may be entitled to payment (and possibly in some cases, union actors or musicians), we can find no basis for a compulsory payment to the director/photographer of a music video on British TV. (Shout out to any UK readers who know otherwise). The TV network must get permission to broadcast the video from the owner, but typically there's no payment for the use because such broadcasts are considered to be promotional -- that is, they promote the band. So, alas, there's no reason for your friend to wait by the mailbox.

Ducks in a row dept. That's not to say the director/photographer doesn't have some rights. She may claim rights for any revenue that the video earns based on any contractual relationship she has with the band -- for example, if the video is sold as part of a DVD of compiled videos. Or she may have a claim to copyright in the video (assuming there was no assignment of her rights or assuming her contribution cannot be categorized as a work made for hire.) If she does have a claim to copyright, she could obstruct the permission process. But we don't think that's what anyone wants to do in this situation. Apparently, there's no dispute between the parties (and we don't want to be the ones to cause one), so perhaps now is the time for the photographer to work out some contractual relationship with the band that determines what happens if the video does generate income.