Think of the Golden Rule. Just as you would want others to respect your copyright and refrain from unlawful use of your recording, so should you take pains to respect composers’ copyrights. To record a copyrighted work, you need to obtain a mechanical license from the copyright holder, usually the publisher or composer. A mechanical license allows for the manufacture and distribution of a recording of a work. You need a license to record copy-righted works whether or not you intend to sell the recording.
However, you do not need a mechanical license if the copyright on the work has expired. In most cases, works published in the United States before
1923 are considered “in the public domain” and may be freely recorded, adapted, sampled, or arranged. In most cases, works published after 1922 but before 1978 are protected for ninety-fi ve years from the date of publica-tion. As of this writing, copyright protection for works composed on or after January 1, 1978, generally lasts the life of the composer plus seventy years.
This is just the bare outline of very complicated legislation, so you need to check the copyright status of any particular work you plan to record (or to arrange, sample, or perform).
If you plan to record a work that has as yet never been recorded, then you negotiate the license directly with the copyright holder (the composer or the publisher) and confi rm your agreement with a written contract that both parties sign. This is usually not a big hurdle. Many composers are en-thusiastic to have their compositions recorded and will gladly grant you their permission. If you are not already in contact with the composers whose works you wish to record, fi nd their contact info online, through their pub-lisher, or through one of the performing rights organizations (PROs). In the United States, these are BMI (Broadcast Music, Inc.), ASCAP (American Society of Composers, Authors, and Publishers), and SESAC (Society of Eu-ropean Stage Authors and Composers). The vast majority of U.S. composers are registered with either BMI or ASCAP (you can register with only one).
Classical composers seem to gravitate more toward ASCAP, whereas the ma-jority of jazz composers are with BMI. The staff members at these organiza-tions are very helpful. They’re advocates for new music and they want you to perform it, so don’t hesitate to call or e-mail with questions, but note that there are also very helpful FAQs on their websites.
If a work has already been recorded, the process to license subsequent recordings is more straightforward. For these, you obtain a compulsory me-chanical license. The cost for the license is set by Congress, and the fees are dependent on the length of the work, the number of copies of the recording planned, and the intended online use. The administrating organization for mechanical licenses is the Harry Fox Agency (HFA). For current rates, see http://www.harryfox.com. If you would like to make fewer than 2,500 cop-ies of your recording as either physical products (CDs, cassettes, or vinyl) or permanent digital downloads, you can request licenses at the HFA site under
“Songfi le.” Keep in mind that CD manufacturers require proof of mechani-cal licenses before they will begin work on a client’s recording, so it’s essen-tial that you obtain the licenses before you record. For more details, see the FAQ page on the HFA website.
Creative Commons
In recent years, digital technology has made copyright law tremendously complicated. Many composers and musicians these days are experimenting
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with sampling and mashups, using excerpts of other musicians’ recordings to create sound collages, new works, and parodies. Traditional copyright does not allow for this creative experimental use of work to be done without permissions and licensing. Many musicians fi nd the standard copyright laws too restrictive. The organization Creative Commons provides musi-cians a range of alternatives.
Creative Commons (CC) licensing enables works to freely circulate on a legal basis while still preserving the owner’s copyright. CC licensing allows for legal downloading and fi le sharing for creative use of original work. Many pop and rock musicians give their music away online for free or on a “pay what you will” basis. The idea is to cultivate a sense of community, build fan loyalty, and allow for co-creative efforts. (See http://www.creativecommons.org.)
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Creative Partnering with Your Fans
Brooklyn-based singer-songwriter Jonathan Coulton (http://www.jonathan coulton.com) is an enthusiastic supporter of Creative Commons. He has built a large fan base for his live shows and recordings. His successful independent online music business model was profi led in a 2007 New York Times piece, “Sex, Drugs and Updating Your Blog.”1Coulton’s example is indicative of the new generation and its relationship with technology, fans, and the industry. He sells his recordings on his own websites but also through CDBaby, which places the recordings on the sites of many online retailers (iTunes, Rhapsody, Amazon, Napster, and more).
Coulton also posts free podcasts and downloads of his music on his website.
He explains why on his site’s FAQ page: “I give away music because I want to make music, and I can’t make music unless I make money, and I won’t make money un-less I get heard, and I won’t get heard unun-less I give away music.” He releases all his music under an Attribution/Non-Commercial Creative Commons license, which allows fans to use his music for any nonprofi t purpose provided they credit him and his website. His fans have made videos using his songs and Flickr slide shows using Creative Commons photographs to accompany Coulton’s music. With Cre-ative Commons licensing, Jonathan allows and encourages fans to co-create and collaborate. This helps him build and cultivate his fan base for his live shows and tours.
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Whether you use standard copyright or Creative Commons licensing, make sure you include the appropriate notice on your album cover and disc label. There are two standard copyright notices to include with recordings.
One covers the sound performances on the recording, indicated by a 䊊P(for
phonorecord), followed by the year the copyright was established and the
name of the copyright owner (usually the label). The other copyright notice covers the text and artwork on your album, indicated by ©, followed by the year the copyright was established. More fl exible legal language may follow, such as “All rights reserved. Unauthorized duplication is a violation of ap-plicable laws” or “All rights reserved. Unauthorized copying, reproduction, hiring, lending, public performance and broadcasting prohibited.” See the albums in your collection for examples of this language. Also be sure to credit the composer and any other copyright holders whose work is incorpo-rated into the album.
Creative Commons licensing is represented with 䊊cc. Make sure that if using this you include the appropriate language for the version of the Cre-ative Commons license you have chosen.
Now, with a basic overview of copyright and licensing, the next ques-tion is, what repertoire will you choose to record?