Is it legal to record a cover of someone else’s song?
When you record a cover version of someone else's song, you need to get a mechanical license authorizing you to reproduce their composition.
A “mechanical license”
is the industry name for an agreement that gives you permission from a songwriter or publisher to record a song that you do not own the songwriting copyright for. The main situation in which a mechanical license would be necessary is if you want to write a cover song. But that’s not the only situation where you could need a mechanical license.
If you wanted to publish the sheet music for Brian Wilson and Mike Love composition of “California Girls,” you’d have to get a mechanical license
from the publisher of the song. However, if you wanted to distribute a CD of the 1965 Beach Boys recording of “California Girls,” you would need both a mechanical license and a master recording license from the Beach Boys (or their record label). The fee that you pay for the license goes to paying the royalty for the songwriter.
Dale Turner at Clever Joe.com
has a great, comprehensive discussion on how to obtain a mechanical license for the purposes of recording and commercially releasing a cover song.
First of all, you should find out who the copyright owner is through ASCAP, BMI, SESAC or similar organizations. After that, you can seek out the owner and try to agree on a proper rate to pay for covering the song. You can also contact the Harry Fox Agency and pay 9.1 cents per song (up to five minutes), with every additional minute per song being $1.75. If your CD printing is going to run less than 2,500 copies, you can apply online at www.songfile.com
In the case of ASCAP, you can find a list of available works on ASCAP’s website
Copyright law also allows for a "compulsory mechanical license" where permission from the original author is not required. In the United States of America, most mechanical licenses are negotiated through the Harry Fox Agency. A mechanical license can only be used after the original copyright holder has exercised their exclusive right of first publishing, or permission is negotiated.
In American law, US Code Title 17, Chapter 1, Section 115(a)(2) states:
"A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work ..." Thus, this law prevents mechanical licenses from being used to make substantially derivative works of a piece of music.
This license is often used for the purpose of self-promotion. For instance a cellist who performed a musical work on a recording may obtain a mechanical license in order to distribute copies of the recording to others as an example of her cello playing. This is also used by recording artists performing cover versions of songs and artists who do not typically write their own songs, as is typical in Country and Pop music. In the United States, this is required by copyright law, regardless whether or not the copies are for commercial sale.
If you are a musician who with questions about how to legally record a cover song or if you’re a musician who feels as if your songs are being covered illegally, 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.