Recording Cover Tunes

Should My Christian Band Record Cover Tunes?

Probably Not,
with very few exceptions.

There seems to be a myth floating around in the Christian music market that it is OK to record cover tunes and give them away, as long as the band does not charge anything for the CD or download.

That myth is false.

Bands, including Christian bands, have recorded cover tunes under the assumption that as long as they are not making any money, they are not breaking copyright laws.

Wrong. Copyright law is not dependent on how much money is or is not made.

 

Christians often assume that because a song is Christian themed and/or written by a Christian that copyright laws do not apply.

Not true. Ministries, even non-profit ministries, are not exempt from copyright law.

 

Bands frequently pass out free CD’s of recorded cover tunes to potential fans and bookers as a way to get started building a fan base and booking gigs.

That’s not the best strategy and it is not legal unless the songwriters received their royalties.

Some Christian bands feel it is OK to pass out free recorded cover tunes because they interpret the word “distribute” in copyright law to mean “to sell through a distribution company”. The word actually is interpreted to means “to pass music from one person (or entity) to another”. The legal description of “distribute” has nothing to do with money exchanging hands (or not) or working with a distribution company.

 

So, now that we know what is not true, let’s see what it true
and how the applicable copyright laws work.

 

Songwriting and Recording Copyrights

Every song that the band would want to cover has two sets of copyrights: one held by the songwriter (and their publisher), the other held by the artist(s) who made the recording. Sometimes these two sets of copyrights are held by the same person(s), if the song was both written and recorded by them. But, even in that instance, there are still two sets of copyrights (one for the songwriting and one for the recording).

For example: When a fan burns a copy of a song to a CD and gives it to a friend, they are violating the sound recording (or master) portion of copyright law. The artist(s) that recorded the CD has the right to sue.

And

When an artist(s) records a cover of a song (without a license) they are not violating the sound recording or master potion of copyright law because they are not using the actual recording. The artist(s) who made the song famous does not have the right to sue. But in this case the songwriters’ rights have been violated and so, the publisher/songwriter does have the right to sue.

So, even if a famous artist tells an up and coming artist that it is OK for them to record a cover tune they made famous, the up and coming artist might still be breaking copyright law because the famous artist might not own the songwriting portion of the copyrights.

 

How to Record and Distribute Cover Tunes Legally

The license required to record a cover tune legally is called a mechanical license. This license allows the artist(s) to use a specific musical composition (song) and distribute it on several audio formats (such as CD’s and downloads). It is important to note that this license does not give the artist permission to use the song on a video. Visual recordings of any kind require a different license called a synchronization license. (Yes, you are supposed to get a synchronization license even if you are posting covers recorded from live gigs on YouTube.) If you follow the correct steps to ask for a license, the owner of the song must give it to you; which is why the license is a called a compulsory license.

The first step to obtaining a mechanical license is to identify the owner of the song. This will be the songwriter and/or the publisher. The record label does not usually own the songwriting copyrights. They often own the master or sound recording copyrights, but as we learned earlier the master copyrights do not affect recording cover tunes. Contact information for the songwriter/publisher is available from the PRO’s (performance rights organization): ASCAP, BMI, SESAC, or you can use a licensing service like the Harry Fox Agency or Limelight (you pay a small fee and they make the work much easier). Go through the search on each organizations website until you find the correct information. If you cannot find the song and songwriter/publisher, the other option is to search the U.S. Copyright Office. This search can be extremely tedious and frankly, if the song you are looking for is not famous enough to be listed with a PRO you probably should not be covering it. You can also hire the copyright office to do a search for you—for the ‘bargain’ price of $165 per hour! There is a form to fill out just to get an estimate for their fees and nothing happens quickly. When you are searching be careful to identify the correct song and songwriter since songs often have the same or similar titles.

Once you have identified the owner of the song, the next step is a letter of intent. This letter must be sent at least 30 days before you start distributing the recording (even if you are giving it away free). The letter must be a physical paper copy sent by registered or certified mail.

 

The letter of intent does not have to be written by an entertainment attorney, but it must include this information:

● A clear subject line or title that specifically says “Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords“

● Your full legal name

● All fictitious/assumed names (This would be your stage name or your band name.)

● The names of each individual owning a 25% interest or more in the distribution of the song (This is a usually a list of the band members, unless any member owns less than a 25% partnership in the band.)

● The bands fiscal year (Most often this is January 1st – December 31st)

● The bands full physical office address (P.O. boxes are not acceptable, unless that is the only option for addresses in your geographic region)

● The title of the song

● The name(s) of the author(s) of that song

● The type of configuration expecting to be made (For Example: CDs, vinyl, MP3s; a music file distributed over the Internet is called a “Digital Phonorecord Delivery” or DPD)

● The expected first date of distribution

● The name of the performer/band doing the cover

● Your signature

If there is more than one publisher, it is acceptable to send a letter to only one of them unless they are out of the country. If any of the copyright holders are from out of the United States, it is wise to send letters to all of the publishers.

You should hear back from the publisher in a reasonable amount of time (most often, less than a month). There will be some publishers who do not bother to respond because you have permission as soon as you send the letter. Other publishers will require you to provide more information, a copy of the proposed recording, or to fill out more forms. Many publishers will simply send you a form letter acknowledging your license. Essentially, you should work within their system, but they cannot refuse your request because the license is compulsory. Technically you have permission to distribute the recording as soon as you send the letter (assuming you identified the correct publisher and address). Once in a while your letter will be returned to you. In that case, start over with your search and try to track down the correct information for the publisher.

 

How much does it cost?

Mechanical license fees are governed by Federal Law (in the United States). These fees are called the Statutory Mechanical Royalty Rate. The rates have two tiers of fees: one for songs under 5 minutes and another for songs over 5 minutes. Songs under 5 minutes are charged 9.1¢ per song for each unit distributed. The rate for songs over 5 minutes is 1.75¢ for each minute of the song, rounding up to the next minute per song for each unit recorded. So, a song that is 5 minutes or less long would be charged 9.1¢; songs that are 5-6 minutes are 10.5¢ (6 minutes x 1.75); 6 to 7 minutes long is 12.25¢ (7 minutes x 1.75¢) etc. This fee is for each CD or download that is distributed.

So, if a band records a 10 song CD in which all the songs are cover tunes under 5 minutes long, they would be required to pay 91¢ for each CD or download they distribute (or give away free). If they give away 100 CD’s and/or downloads their royalty fees would be $91, 1,000 CD’s or downloads would be $910. The cost of recording and manufacturing the CD’s and downloads is in addition to the royalty fees.

Royalty fees can be negotiated down and even waived entirely by the songwriter/publisher. The Federal Statutory Mechanical Royalty Rate is the ceiling on how much can be charged, it is also the standard for what is charged, but it is not a requirement to charge that much.

 

How do you pay the royalties?

Regardless of how high the publisher sets the royalty rate, you are required to them a statement every month which shows how many times you distributed the song with a payment for those royalties. A few publishers might bill you or have forms of their own that you must use. But, most of the time, it is up to you to generate the forms and mail them in on time. Publishers do have the right to charge late fees and interest on late payments.

 

The monthly statement must include:

● A clear title that says “Monthly Statement of Account Under Compulsory License for Making and Distributing Phonorecords”

● The period (month and year) covered by the statement

● Your full legal name

● All fictitious/assumed names (This would be your stage name or your band name.)

● The names of each individual owning a 25% interest or more in the distribution of the song  (This is a usually a list of the band members, unless any member owns less than a 25% partnership in the band.)

The bands full physical office address (P.O. boxes are not acceptable, unless that is the only option for addresses in your geographic region)

● The title of the song

● Name(s) of the author(s) of that song

● The name of the performer or band doing the cover

● The playing time (length) of your recording of the song (For Example: 4:25 would be 4 minutes and 25 seconds)

● The number of DPDs made (How many times your recording was downloaded)

● The number of DPDs that were never delivered due to a failed transmission

● The number of DPDs that were retransmitted in order to complete or replace an incomplete or failed delivery

● The total royalty payable (number of total CD’s and DPDs, not counting ones never delivered multiplied by the statutory or agreed upon royalty rate)

● The following statement: “I certify that I have examined this Monthly Statement of Account and that all statements of fact contained herein are true, complete, and correct to the best of my knowledge, information, and belief, and are made in good faith”

● Your signature

Some publishers will allow you to pay them directly while others only work through licensing services such as the Harry Fox Agency or Limelight. You should find out how to pay them as part of your initial publisher search.

At the end of each year, you must also send an Annual Statement of Account, which is identical to the Monthly Statements except that it includes every month of the previous year and it must be certified by a licensed CPA (certified public accountant). To save on accounting fees, you can create the statement yourself but it must be brought to a CPA to check and certify before you send it to the publisher.

 

Should your Christian band record cover tunes?

As you can see from the above information, recording cover tunes requires more work and money than recording your own songs. Most Christian musicians have extremely limited amounts of both time and money. Additionally, recording cover tunes can be detrimental because most people want to hear the songs they know done in the way they also already know. Your recording will always be compared to the most popular recording. So, if your recording of their favorite cover does not sound exactly like they know it, they assume your version is wrong. This mindset leads them to believe that your band is not very good. As musicians we know that this way of looking at covers is not true or good. But most of our audiences are not made up of musicians. They generally like what they already know, without changes.

I personally recommend that Christian bands perform cover tunes live but do not record them. Use covers at live shows to attract the audience and keep them interested by giving them familiar music. Sprinkle your originals throughout the set. Record only your originals to build your bands following. In this age of singles, it is no longer necessary to release a full CD ASAP. Save your money and do an absolutely incredible job on one original single, release that and then repeat the process. After you have 10 or so really great singles, release a full CD.

No Stealing Cover tunes
Don’t Steal Songs

If you do decide to record and distribute cover tunes, do it legally. When we record covers but do not pay royalties, we are stealing from the songwriters. We would not want to be treated this way if we were the songwriter. Furthermore, God requires us to obey the law of our land—we do not receive all of His blessings when we are not obedient. Let’s demonstrate our love for God and for people by paying royalties where they are due.

CLICK HERE for more information about performing cover tunes.

 

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