Must you get permission to record someone else’s song?

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Dear Cecil: I remember reading once that the group the Diodes recorded “Red Rubber Ball” to get back at its composer, Paul Simon, for saying that he hated punk rock. This brings to mind a question: must a group or singer get any sort of permission before recording somebody else’s song? Or do you just have to pay royalties after the fact? Is asking permission beforehand just a professional courtesy? Curly L., Fair Lawn, New Jersey


Illustration by Slug Signorino

Cecil replies:

Surprisingly enough, if somebody is determined to do a cover version of your song, it is well-nigh impossible for you, Joe Composer, to stop them. In general, the right to record somebody else’s song is called a “mechanical license,” and usually it’s negotiated in a routine manner between representatives of the copyright holder and the would-be cover artiste. (Outfits like The Harry Fox Agency in New York generally handle the publisher’s side.) However, in the rare event that negotiations fail, the copyright laws contain provisions for a type of mechanical license called a “compulsory license,” which, in effect, give anyone the right to record any song he or she wants to, as long as notice is given to the song’s copyright owners within 30 days after the recording is made and before it is distributed. Compulsory licenses were written into the copyright laws in 1909 in an attempt to break up a monopoly in the piano-roll industry–an industry which has since been pretty well broken up, period. So why negotiate at all? Mainly because the law dictates higher royalty rates and stricter payment schedules for compulsory licenses than you can obtain with the negotiated kind.

But hey, you say, I’ve just written a couple of can’t-miss tunes that I’m sure will rocket to the top of the charts as soon as I can get them recorded. Do I now have to worry that music industry vultures will steal them before I can make my pile? Don’t fret, bucky. The composer’s one inalienable right is to decide who will record his song first. Bob Dylan pulled this one in the notorious case of “Mr. Tambourine Man”: the song was originally set to be issued in a version that Dylan had recorded live at a folk festival, but Dylan wasn’t happy with the results. Unfortunately, his contract with Columbia didn’t give him the right to decide on what material the company released, so Bob didn’t seem to have much of a choice. But then, the Poet of Our Generation remembered his first issue rights and denied a mechanical license to his own record company. The album was killed.

Meanwhile, the Brothers Four, a once beloved folk group that had fallen on hard times, had recorded a highly commercial cover version of the song–a guaranteed comeback. But when Dylan’s anticipated first version failed to appear, the group was caught between the proverbial rock and a hard place, unable to release their dynamite single. It sat in the vaults until Dylan issued his approved version some months later–but in the meantime, the Byrds had recorded their cover version, and that was the one that went to the Top of the Pops. Such are the vagaries of fortune.

For a more detailed discussion of licensing (and lots of other stuff besides), see This Business of Music, by Sidney Shemel and M. William Krasilovsky. Of this extraordinary volume even Cecil is in awe.

Cecil Adams

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