Can I include a cover song in my release for Digital Distribution?

Yes, however, when you submit a release for Digital Distribution you represent that you own, or have licensed all rights relating to this submitted material.  This includes rights related to compositions, sound recordings, artwork, images, trademarks, publicity rights, and any required licenses related to cover songs or samples

There are two copyrights involved in every recorded song:  (1) the musical work copyright and (2) the sound recording copyright.  The musical work copyright covers the musical arrangement and accompanying lyrics of a song.  The sound recording copyright covers a particular recording of a song—whether it is recorded on a CD, a digital file, or any other recordable format.  When you record a cover, you have created a new sound recording.  In general, you own the new recording, but you must have a license from the owner of the musical work copyright, which is usually a publisher or the songwriter.  This license is known as a “mechanical” license.  If the song has more than one publisher/songwriter (more than one owner), you need a mechanical license from each publisher/songwriter.  A mechanical license is different than the licenses provided by ASCAP, BMI, and SESAC—those organizations provide licenses for the public performance of music.  A mechanical license provides for the reproduction and distribution of copies of music, whether as physical copies, such as CDs, or copies made in connection with digital transmissions, including digital downloads (also known as “digital phonorecord deliveries” or “DPDs”) and interactive streaming. 

For any cover you submit to ReverbNation for digital distribution, you must own or control the sound recording of the cover, and you are responsible for securing, paying for, and complying with the terms of digital download mechanical licenses for the musical work (and you shall make copies of your mechanical licenses available to ReverbNation upon request).  If you stream the cover recording from your own website with a “play now” or other on-demand feature, you also need an interactive streaming mechanical license (in addition to a public performance license from the applicable performing rights organization, such as ASCAP, BMI, and/or SESAC). 

You first need to identify the publisher(s)/songwriters(s) of the song you are covering.  In most cases you can find this information online using song databases available at www.ascap.com, www.bmi.com, www.sesac.com, www.harryfox.com, www.mpa.org, and www.copyright.gov.  Provided that the song you are recording has previously been distributed to the public in the United States (and meets certain other qualifications), the Copyright Act provides for a “compulsory” mechanical license.  This means that a publisher/songwriter cannot refuse to grant you a mechanical license.  In many cases, you can secure a private version of the compulsory mechanical license from online services such as The Harry Fox Agency at www.harryfox.com.  In cases where The Harry Fox Agency does not represent the publisher/songwriter, you will need to secure the mechanical license through other means.  You can contact the publisher/songwriter directly and ask them for a mechanical license.  You can also secure a mechanical license without express permission from the publisher/songwriter by complying with the terms of Section 115 of the Copyright Act.  Information about Section 115 is available at www.copyright.gov, and in the Copyright Office’s Section 115 Circular, available here.  When obtaining a mechanical license, you need to specify the type of use to be covered by the license—e.g., downloads, CDs, etc.

A standard mechanical license is limited to the Section 115 compulsory license terms and solely permits a song that has been previously distributed to be re-recorded and sold or otherwise distributed as a new audio-only recording to individuals for private use in the United States (including sales by internet retailers such as iTunes, Google Play, and Amazon.com through ReverbNation’s digital distribution service).  The new recording may be a new arrangement of the song, but it cannot change the basic melody or fundamental character of the song.  The basic license fee for a compulsory mechanical license is 9.1 cents per copy (for songs up to five minutes in duration, and prorated thereafter).  Where a private version of the compulsory license is available (for example through The Harry Fox Agency at www.harryfox.com), the license fee is typically paid in advance by “pre-purchasing” a certain number of copies.  You are responsible for monitoring the number of downloads you distribute through ReverbNation, paying the mechanical license fees, and otherwise complying with the mechanical license terms.  If you use a service such as The Harry Fox Agency, you are responsible for pre-purchasing a sufficient number of copies and renewing your mechanical licenses before they expire (Harry Fox digital download licenses generally expire after 1 year) and/or if the number of downloads will exceed the number you originally pre-purchased.

A standard mechanical license is generally limited to the compulsory license terms.  A mechanical license does not permit the use of an existing recording, whether by sampling or other reproduction.  For example, a mechanical license for Michael Jackson’s “Billie Jean” only permits a new original recording of that song (e.g., a recording of a new performance of the song using your own instruments, vocals, etc.)—it does not permit the use of any portion of Michael Jackson’s actual recording of “Billie Jean.”  A separate master use license is required to use the recording, which generally must be secured from the applicable record label.  A mechanical license also generally does not permit your new recording of the song to be used with video, including music videos, films, commercials, or otherwise.  A “synchronization” license is required to use a song with video, which in general must be secured directly from the publisher/songwriter.  There is no fixed rate for master use licenses and synchronization licenses.  These licenses must be negotiated with the applicable rights holders and license fees can vary widely.  Also, standard mechanical licenses may not cover the exact duplication of the order, arrangement, and selections of songs on a third-party album to the extent the third party may have a compilation copyright in such order, arrangement, and selections.  So, for example, a standard mechanical license may not permit you to create your own version of Michael Jackson’s “Thriller” album if you intend to cover all the same songs and compile them in the same way as on the original “Thriller” album.

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