Can a school Jazz Ensemble give away CDs of covered jazz standards without licensing each track?

May 17, 2011

Dear Music Lawyer,

The Jazz Ensemble at my school recorded an album years ago hoping to sell it, but we did not buy mechanical licenses for any of the tracks, and we arranged everything ourselves. I have had this "asset" for a few years, but cannot release it without paying tons of money for licenses. I don't expect we would sell many copies, so that money would not be recouped.

It's a shame that the CDs have sat in my cabinet for a few years, and I would like to at least give them away at concerts and send them out for PR, possibly accepting donations. Can I legally do this? Or would I put my school in jeopardy?

—Laura

Dear Laura,

There is no legal authority to reproduce and distribute cover versions of copyrighted works without the copyright owner’s permission, even if you are not selling your version of the work. The only ways to release your school’s cover versions for free would be if (1) the songs are in the public domain or (2) you obtain gratis mechanical licenses from each of the songs' publishers.

Before I continue, I want to emphasize that my response assumes that your arrangements do not substantively change the basic melody and lyrics of the original songs. Hence, I have used the term cover versions. If the arrangements substantively change the basic melody and lyrics, then they would be considered derivative works and your rights to distribute them would require additional analysis.

It is commonly believed (or, perhaps more accurately, commonly hoped) that as long as you aren't making money on the use of other people's copyrighted works, then you are welcome to use the works at no charge. However, that is not what the U.S. Copyright Act provides.

For a specific period of time (the term of copyright protection in the United States is currently life of the author plus 70 years), the Copyright Act gives copyright owners a bundle of rights, namely, to reproduce, distribute, publicly perform, publicly display, prepare derivative works, and, for sound recordings only, to publicly perform by digital audio transmission. Generally speaking, these rights are "exclusive" to the copyright owner during the term of copyright, meaning that the copyright owner(s) alone hold the rights in and to their works and therefore have complete control over whether and how other people can use such works. (The major exception to this exclusivity is the concept of "fair use," which is highly unlikely to apply in your situation. I'm sure I will cover fair use in a future response.)

The first step would be to check to see if any of the works are no longer within the term of copyright protection. In other words, check to see if any of the works are in the public domain. If they are in the public domain, then you do not need to get permission to distribute your school's recordings of those songs. You would also be free to take liberties with your musical arrangements of works in the public domain.

Tip: A helpful chart in determining whether a work is in the public domain is available here.

If the work is not in the public domain and therefore needs to be cleared, you would need to contact the publisher(s) of each song to obtain a mechanical license. The “easy” way to obtain mechanical licenses is by notifying the publishers before distribution that you are going to pay them the so-called "full statutory rate" (subject to an important caveat discussed below). Currently, as of 2011, the full statutory rate is 9.1 cents per song per CD distributed (except for songs over 5 minutes, which are a bit more). If you wait until after distribution, then the publisher can refuse to grant you a mechanical license.

Fortunately, since you said you have not yet distributed the works, you could still avail yourself of the compulsory license provisions. The license fee payment per CD for a standard album of 10 songs that are each under 5 minutes would be $0.91 (10 x 9.1 cents).

I say that's the easy way because a publisher is obligated to accept your license request if you offer them the full statutory rate under the "compulsory mechanical licensing" provisions of Section 115 of the Copyright Act. You can request a reduced rate or gratis mechanical license, but publishers are not obligated to grant mechanical licenses for less than the statutory rate.

A major caveat to compulsory mechanical licensing is that the copyright owner can refuse to grant a mechanical license if it would be the first mechanical reproduction of the song, e.g., if the song had not been previously recorded and released. This is known as the "first use" exception.

If your school can afford to pay 9.1 cents per song per CD in mechanical license fees, then you may want to look into a mechanical licensing service available from Harry Fox called Songfile that offers users the option to purchase mechanical licenses online for 2,500 or fewer copies of a recording as a CD, cassette, LP, or permanent digital download. Of course, Fox can only license works that are registered with them, but with more than 46,000 affiliated music publishers, Fox is able to license a significant amount of music.

Thanks for your question!

—Amy E. Mitchell