In order to distribute a cover song through CD Baby, you must, at minimum, acquire a mechanical license for downloads.
This is because no matter how you’ve restricted your music’s availability by geography or platform, at any point you could elect to widen your distribution to include download platforms within the United States that do not pay mechanicals directly to royalty collection societies.
We recommend an agency like Easy Song Licensing to help you with the cover song licensing process.
Please note that the below is not legal advice, we are not your lawyers, and you should always contact your attorney before entering into any contract such as a license.
If you have recorded a cover version of someone else's song, and you plan to make that recording available to the public in the U.S., the following information applies to you.
You must follow these steps BEFORE you make your recording available to the public!
If you want to record and release your own cover version of someone else’s song, then you’ll need a “mechanical license” for your cover song. A mechanical license is the right to make copies of the song’s musical structure such as the lyrics and notes, which is called the musical composition. However, the license does not grant you any rights to the actual recording of the song you want to cover since that is protected by a separate copyright.
In return for a mechanical license to the musical composition, you pay a “mechanical royalty” to the copyright owner of the musical composition. The copyright owner of the musical composition is generally called the publisher.
In the U.S., there are three ways to obtain a mechanical license for a cover song: (1) through the compulsory licensing procedure established by law; (2) from the Harry Fox Agency if they administer the musical composition for the song; or (3) directly from the publisher of the song. This article focuses on the compulsory licensing procedure.
The Compulsory License and Notice of Intention:
The Copyright Act provides a process for obtaining a “compulsory license” for covers of nondramatic musical works. It is called a compulsory license because the publisher can’t say no and is compelled to grant you the mechanical license if you follow the steps in the Copyright Act. After you receive a compulsory license, you can distribute your audio only recording of the cover song on a physical format like CD or digitally over the internet in the United States.
This compulsory license is only available for sales in the United States and only applies to uses in the United States of the musical composition created by the songwriters of the original song. The song you want to cover must also have been previously released by the publisher as an audio only recording.
A compulsory license does not grant you a right to change the basic melody or fundamental character of the song, use any recording of the performance of the song such as the master recording, or to use your cover song in synchronization with video. Also, the compulsory licensing process only exists for “nondramatic musical works” and does not apply to “dramatic musical works”, which is music created for incorporation and performance in dramatic performances such as an opera or theater musical. A separate license from the copyright owner of the recording or the composition is needed in those cases.
If you follow the steps for compulsory licensing, the owner of the copyright to the musical composition cannot prevent you from distributing and selling your cover song as an audio only recording in the United States.
The following outlines the procedure for individuals to obtain a compulsory license to distribute cover songs to end users in the United States:
- Identify the Copyright Owner
The first step is to identify the copyright owner of the musical composition, which is generally the publisher. The easiest way to find a publisher is to search the performing rights organizations’ databases and the U.S. Copyright Office’s records:
Keep in mind that the owner of the rights in the musical composition of the song is often not the same as the owner of the rights to any particular recording of the song. In other words, record labels are almost never the owners of the copyright to the musical composition, and they typically own only sound recordings. You should be looking for the name of a publisher, who in some cases may be an individual. Be careful to identify the exact song you want, as there are many songs with the same names.
If you cannot find the publisher, you can still rely on a compulsory license through the procedures described below.
- Send a Notice of Intention
To obtain a compulsory license, you must send a “notice of intention” to the copyright owner for each song that you intend to cover. The notice of intention must be sent at least 30 days before making and distributing your cover song, and must include the information and meet the requirements set out in 37 CFR § 201.18, including your name, contact information, and information about the song you want to cover.
If there is more than one publisher listed, sending a notice of intention to one of them is sufficient for the compulsory mechanical license. However, if one or more of the copyright holders is not from the United States, it is best to send the notice to all copyright holders.
If you cannot find the publisher after a thorough search, you can send the notice of intention to the Copyright Office for physical distribution of your cover song on physical media such as CDs, vinyl records, and tapes. For digital distribution, the Music Modernization Act established a mechanical licensing collective that will eventually issue the mechanical license. In the meantime, you must still attempt to send the notice of intention to the copyright owner and follow certain requirements, including engaging in good-faith, commercially reasonable efforts to identify and locate each copyright owner of a musical work.
See the Copyright Office website for the proper address and current filing fees for physical distribution of your cover song by notice of intention. Further instructions and information for the notice of intention are in "Circular 73" from the Copyright Office.
- Send Royalty Statements and Pay Royalties
Once you begin distributing your cover song after you receive a compulsory license, you must send monthly statements of royalties on or before the 20th of each month, and pay the royalties. The form, content, and other information for the monthly statement are stated in 37 CFR § 210.6.
You must also send an annual statement of account at the end of each calendar year, which must be certified by a licensed Certified Public Accountant (CPA). The form, content, and other information for the annual statement of account are stated in 37 CFR § 210.7.
When you use a compulsory license for your cover song, you will pay a “statutory rate” for royalties to the copyright owner. The statutory rate is a royalty rate established by law. You can find the current statutory rate for mechanical license royalties at the Copyright Office.
Help with the Compulsory License:
Obtaining a mechanical license for a cover song and following the requirements for a notice of intention and royalty accounting can be difficult, which is why we recommend using a service like Easy Song Licensing to help you with the cover song licensing process.
You may also be eligible for low cost legal services through your local volunteer lawyers for the arts. A full list of the volunteer lawyers for the arts organizations is on Wikipedia, and include New York, California, Washington, and Oregon.