The permission required to record or play another person’s music that is copyrighted is called a license. In the case of an independent musician, licenses can be given informally. You can simply call or email the musician in question and ask for permission.
Getting a license is a potentially difficult, time consuming, and expensive process.
For a major label artist, you’ll need to contact the “publisher” of the music and get permission in the form of a “license.” This requires
- Finding the publisher of the song that you want to perform
- Negotiating with the publisher for the right to use the work
You must contact the publisher/producer and ask for permission. They will ask you questions about what you plan on using the music for, and whether you are profiting from its use.
They will charge you accordingly. “A sound recording license fee for a three-second sample used only once in a new major label work may cost $1500 as an advance on future royalties from album sales. For a looped sample of three seconds or less, the fee varies from $1500 to $5000, while a looped sample greater than three seconds can run into the tens of thousands of dollars. 38” 1
Anticipating these charges, it is standard practice “for major label hip-hop acts… to set aside a portion of the recoupable recording budget for sample clearances. For an album that costs $300,000 to record, a $60,000 sample budget is commonplace. However, sample costs very often go over that budget and must be paid for directly out of the artist's own pocket.”2
For independent artists, this process of obtaining licenses is daunting and maybe even financially impossible.3 Even for artists signed to major labels, the process is also daunting because the label may neither want to pay for the license nor risk using the sample without a license, even though use of the sample may be “fair use.”4
Songs using samples of other songs require two licenses: One for the sound recording and the other for the musical composition. By contrast, cover songs without samples only require the former license.
Sound recording licenses can be easily obtained through a compulsory license. This is needed whenever an artist covers a song.5 The current rate is 8.5 cents (or 1.65 cents per minute) paid to the original work's publisher for every copy of the track sold.6”7
A license for the musical composition, however, must be obtained from the original work’ publisher. And she may be unwilling to license it.8
Even if the publisher is willing to license the composition, “[f]ees and conditions vary greatly… When a song is not well known and only a small portion of it is intended for use… prices set between one and five thousand dollars… Otherwise, prices tend to hover between five and fifty thousand dollars per license…”9 If flat rates can’t be negotiated then they often require initial advance payment and royalties (extra payments based on how many units you sell).10
Sometimes permission to use music is granted for free.11
Rights holders may take a percentage of copyright ownership in the new work “ranging from 15 to 66 percent (or in cases such as
The Verve-Rolling Stones debacle, 100 percent).”
12
Remixes and parodies
“File-sharing programs and websites, the increasing digitization of new and old media, and the availability and facility of technology used to generate, modify, and spread art by anyone, including amateurs, have led to a boom in production.” 13
Online cover songs without samples
If you've been to more than a handful of local concerts, you've heard a cover song. A band records the cover song, uploads a video of the show to their website. Someone downloads the video and reuploads it onto a video sharing site where 10,000 people watch the cover and comment that it's better than the original.
If you a musician that requires assistance in getting a license to play a cover song during your live shows, or if you’re unsure whether you need a license at all to cover, sample or remix an existing song,
feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.
Sources:
1. Josh Norek, "You Can't Sing without the Bling": The Toll of Excessive Sample License Fees on Creativity in Hip-Hop Music and the Need for a Compulsory Sound Recording Sample License System, 11 UCLA Ent. L. Rev. 83, 90 (2004)
2. Josh Norek, "You Can't Sing without the Bling": The Toll of Excessive Sample License Fees on Creativity in Hip-Hop Music and the Need for a Compulsory Sound Recording Sample License System, 11 UCLA Ent. L. Rev. 83, 90 (2004)
3. Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime, 19 Alb.
4. See Derek E. Bambauer, Faulty Math: The Economics of Legalizing the Grey Album, 59 Ala. L. Rev. 345, 390-91 (2008).
5. 17 U.S.C. § 115 (2002).
6. Copyright Arbitration Royalty Panel (CARP), Copyright Royalty Rates, Section 115, the Mechanical License, available at http://www.copyright.gov/carp/m200a.html (last visited Apr. 13, 2005).
7. Carlos Ruiz de la Torre, Digital Music Sampling and Copyright Law: Can The Interests of Copyright Owners and Sampling Artists Be Reconciled?, 7 Vand. J. Ent. L. & Prac. 401, 403 (2005).
8. Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime, 19 Alb. L.J. Sci. & Tech. 261, 247 (2009).
9. Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime, 19 Alb. L.J. Sci. & Tech. 261, 247 (2009).
10. Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime, 19 Alb. L.J. Sci. & Tech. 261, 247 (2009).
11. Oftentimes, copyright owners will agree to give permission free of charge for the re-use of relatively insignificant, trivial samples, thus bypassing the current licensing procedures. See Michael L. Baroni, A Pirate's Palette: The Dilemmas of Digital Sound Sampling and a Proposed Compulsory License Solution, 11 U. MIAMI ENT. & SPORTS L. REV. 65, 99 (2004); Jason H. Marcus, Don't Stop That Funky Beat: The Essentiality of Digital Sampling to Rap Music, 13 HASTINGS COMM. & ENT. L.J. 767, 787 (1991). However, free permission may not always be granted as this depends on the cooperativeness of the copyright owners.
12. Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime, 19 Alb.
13. Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime, 19 Alb.
