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Q&A: What licenses are required to make a compilation CD of cover songs?
By Duman & Fiero - 10/04/2005 - 02:38 PM EDT

Hi Jon & Gian:

I love your column!

I’ve been thinking about creating a compilation CD containing covers of popular songs (not the original song, but of covers performed by other artists).

My question is this: If the person(s) that did the cover song took care of the whole mechanical license thing already, do I need to have a separate mechanical license with them as well as the original artist/production company?

Thanks in advance for any help you can give me.

-Allen




Dear Allen:

Your question indicates a fairly common misperception regarding mechanical licenses which we must address.

A mechanical license is something you arrange with the writer, owner or publisher of the song (i.e. the musical composition), not the owner, performer or producer of a recording of the song (even the famous version of it).

The distinction between the song and a recording of the song is especially important when you consider that not all labels, artists or producers own the songs they record (nor do the owners of songs necessarily own the recordings made of them). Accordingly, you wouldn’t ordinarily expect to have to deal with the owner/artists/producers of the either original recordings or the cover recordings, in order to secure the right to use the songs (unless, of course, they also happen to own or control the rights to those songs).

In addition to needing a mechanical license from the owner of the song/publishers, you should also be aware that, because each recording of a song is a separately-owned creation, distinct from the song embodied in it, you will also need to secure the right to use the cover recordings themselves from the owners of those recordings. Unless you intend to actually purchase the recordings, the type of agreement you will need for this purpose should be in writing, and is generally referred to as a “master use license."

As to the other part of your question, assuming that the artist/label/producer of the cover version has, in fact, secured a mechanical license with the owner or publisher of the song, your use of the same cover recordings produced under that license would normally be expected to be covered under its provisions; however, as this type of transaction is generally contractual in nature, and can therefore vary from case to case, any doubts regarding this point should be resolved by inspecting an actual copy of the original mechanical license agreement.

It’s important to keep in mind that even unintentional misappropriation of someone else’s’ copyrighted material can result in liability for copyright infringement. Specifically, anyone involved in the “chain of distribution” of unlawful infringing activity can be potentially held co-liable for the misconduct, regardless of whether the guilty party was aware of the unlawful nature of their participation.

The possible scenarios are numerous, including situations where you are misled as to the existence or scope of the mechanical license, or where the owner of the song/publishers have not been paid their rightful mechanical royalties (which is why it’s a very good idea to confirm that all necessary mechanical royalties are actually paid to the owner of the song/publisher, whether or not you are the designated party responsible to pay it).

Although the type of agreements you will likely require are not as complex as some you may encounter, your failure to properly secure them could prove just as disastrous. In order to ensure that your interests are sufficiently covered, our best advice to you is to contact an experienced entertainment or music business attorney for direct assistance.

-D&F


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