In this article from Digital Music News, Paul Resnikoff writes about the finer points of recording covers, and quotes me about complications that arise if you want to change the melody or lyrics of a song, or if you wish to make a video.
Think Covering a Song Is Complicated? Try Covering Part of a Song...
by Paul Resnikoff
The following is part of a series of articles taking a closer look at covers. It's also part of an ongoing sponsorship partnership with Limelight, which specializes in mechanical clearances for cover songs. See it all works out… Enjoy!
We all want to run with our creative juices, and deal with the details later. Let the lawyers, publishers, labels, and managers figure the rest out! But sometimes, the cost of doing it a certain way can be astronomical, especially when it involves someone else's work.
Take covers. Play your own interpretation of a previously-recorded song, and a few predictable licenses come into play. That includes a compulsory mechanical license, which gives an artist the legal right to create and distribute a cover version - as long as a penny-rate (usually 9.1 cents per copy or download) is paid to the writer and publisher.
That's the easy part. Actually, the more popular launchpad for a cover song is YouTube, though this introduces more complicated sync licensing. And, none of this is covered by compulsory law, meaning that a direct licensing discussion is typically required with the publisher or songwriter. And, we're talking serious takes, not hairbrush sing-a-longs with a boombox in the corner.
But this is baby stuff. Because once an artist steps outside of the exact lyrics, melody, or structure of the original song, some totally different terms apply. "You can't chop it up, you can't loop it, or the compulsory license doesn't apply," music attorney Steve Gordon explained to Digital Music News. "If you change one word of a lyric, you're going to need a direct license."
Case in point? Take a look at chart-topping "The Time (Dirty Bit)" by the Black Eyed Peas, which chops up and reinterprets the chorus from "I've Had the Time of My Life" from Dirty Dancing. Without knowing the details of that negotiation, Gordon estimated a very pricey payout, and noted that some publishers demand a nice advance against penny-rate payouts. "If it's a bigger song, you can bet on it."
And what about a flimsy fair use defense? Have fun with that one in court.