JPF Home Page Forums General Messages Mentor Questions Forum Another question about mechanical license

Does a singer require a mechanical license when (s)he records a demo to pitch to labels?

Hi everett

Singer will apply for mechanical license when he/she planning to reproduce it for income generating purposes especially if they are Indie. But pitching his skill I think it dont need one. This way will benefit both of them. The songwriter song will have a chance, as well as the artist/singer. If the AR guys like it especially the song he pitched then double whammy to the writer.

In some standard mechanical contracts I read, there is some paragraph there the when you give your CD for promotional purposes you dont give royalty to both. In my point of view this can apply to your question.

Mabuhay!!!

Lynman

That's what I figure too,just checking to be sure before giving the OK to the singer that wants to use my song,for her protection and mine.

1.) A mechanical license is not available unless the work has first been published.
2.) Unless you have given the exclusive rights to exploit your work to someone else (e.g. a publishing company, a work-for-hire agreement, etc.), you can always give permission to someone else to use your song for whatever limited or general purpose you deem appropriate. However, if you want to protect them (and yourself) as you say, then you must give them the license to use the work in writing.
3.) Unless the artist who is going to record the song is using a song that is in the public domain or a song that is pre-licensed (e.g. some of the Karaoke-type discs have limited pre-licenses) the recording artist should always obtain a license to use the song no matter what the purpose. It doesn't matter that the intention is only to make a demo. An unlicensed use of the song is a copyright infringement.

A Humm,
I think we have discussed this before but maybe some clarification is in order. I don't know how the Major Artists do it but I suspect songs are recorded all the time to see if they want to release the song or songs. If the song is not released for sale no mechanical license would be needed.

When songs are pitched to an Artist or Producer and they deem a song or songs to have potential for that Artist they may go into the studio and do a complete master recording of all the songs and then judge all of them to see what will go on an album and what will be passed on.

This could be called demo shopping if it is run by a Label head, etc.
In fact if you pitch songs to an Artist that is shopping a demo to a Label they can do that with the songs that they are considering without any permission from the copyright owner. It is only when they decide to release the song for sale that they apply for the mechanical license.

A song is not considered published until it is released for sale.
The mechanical license is paid, according to how many copies will be maufactured and what rate has been agreed to for the license to be issued.

SEE COMMENTS BELOW:

"I think we have discussed this before"
MANY TIMES, ON MANY POSTS.

"but maybe some clarification is in order"
THIS SEEMS TO BE A CONSTANT SOURCE OF CONFUSION FOR MUSICIANS.

"I don't know how the Major Artists do it but I suspect songs are recorded all the time to see if they want to release the song or songs. If the song is not released for sale no mechanical license would be needed"
MAJOR ARTISTS DON'T GENERALLY PAY THE MECHANICAL RATE. THEY NEGOTIATE WITH THE AUTHOR/PUBLISHER FOR A REDUCED RATE OR FLAT FEE. THE AUTHOR/PUBLISHER IS USUALLY WILLING TO AGREE TO THE REDUCED RATE OR FLAT FEE IN RETURN FOR HAVING THE SONG RELEASED BY A MAJOR ARTIST WHICH AUTOMATICALLY GUARANTEES INCOME. THIS IS ESPECIALLY TRUE IF THE ARTIST IS LIKELY TO GET AIRPLAY BECAUSE THEN THE AUTHOR/PUBLISHER WILL GET PERFORMANCE RIGHTS INCOME ON TOP OF THE LICENSE AS WELL AS THE ADDED BENEFIT OF NUMEROUS OTHER LICENSED RELEASES BY LOWER LEVEL ARTISTS WHICH PROBABLY WOULD NOT OTHERWISE HAVE HAPPENED.

"When songs are pitched to an Artist or Producer and they deem a song or songs to have potential for that Artist they may go into the studio and do a complete master recording of all the songs and then judge all of them to see what will go on an album and what will be passed on"
THEY SHOULD BE DOING THIS WITH THE AUTHOR/PUBLISHERS PERMISSION

"This could be called demo shopping if it is run by a Label head, etc."
I'M NOT SURE WHAT YOU MEAN BY A "LABEL HEAD" SHOPPING A DEMO OR A SONG IS USUALLY DONE BY GOING THROUGH THE A&R DEPARTMENT

"In fact if you pitch songs to an Artist that is shopping a demo to a Label they can do that with the songs that they are considering without any permission from the copyright owner."
NOT LEGALLY, THEY CAN'T, AND I WOULD NOT RECOMMEND RECORDING THE SONG WITHOUT PERMISSION. NOTE THAT PERMISSION IS USUALLY PRETTY EASY TO OBTAIN AND THE RAMIFICATIONS CAN BE SEVERE IF YOU DON'T GET PERMISSION IN ADVANCE. FOR EXAMPLE, WHAT HAPPENS IF YOU SHOP THE DEMO TO A LABEL, AND THEY DECIDE THEY WANT YOU BASED ON THE STRENGTH OF THE MATERIAL. DID YOU DISCLOSE TO THEM THAT YOU DIDN'T HAVE PERMISSION TO USE THE MATERIAL? WERE YOU ACTING UNPROFESSONALLY BY NOT DOING SO? THE RECORDING CONTRACT IS GOING TO REQUIRE YOU TO WARRANT THAT YOU ALREADY HAVE THE RIGHTS TO THE SONGS, AND USUALLY CONTAINS A PROVISION FOR THE LABEL TO PAY LESS THAN THE STANDARD MECHANICAL RATE. NOW YOU HAVE A DILEMMA BECAUSE YOU HAVE A DEAL, AND THEN YOU GO TO THE AUTHOR/PUBLISHER ONLY TO FIND OUT THAT THEY ALREADY MADE AN EXCLUSIVE DEAL WITH SOMEONE ELSE TO BE THE FIRST TO RELEASE THE SONG, OR THEY ACTUALLY SOLD THE SONG (REMEMBER, IF IT'S UNPUBLISHED, YOU CAN'T GET A MECHANICAL LICENSE YET AND THEY MAINTAIN COMPLETE CONTROL OVER THE ORIGINAL WORK OF AUTHORSHIP). OF COURSE, ALL OF THIS COULD HAVE BEEN AVOIDED BY SIMPLY ASKING IN THE FIRST PLACE (AND BETTER THAN THAT, GETTING A WRITTEN AGREEMENT TO USE THE SONG ON A CONTINGENT BASIS).

"It is only when they decide to release the song for sale that they apply for the mechanical license A song is not considered published until it is released for sale."
NOT EXACTLY. SONGS CAN BE PUBLISHED WITHOUT BEING RELEASED FOR SALE IN THE FORM OF A RECORDING, AND SOME SONGS ARE INTENDED TO BE PUBLIC DOMAIN.

"The mechanical license is paid, according to how many copies will be maufactured and what rate has been agreed to for the license to be issued"
THE RATE FOR A MECHANICAL LICENSE IS NOT "AGREED TO." IF IT IS A MECHANICAL LICENSE, THE RATE IS PRE-SET BY THE COPYRIGHT LAW. HOWEVER, AS STATED ABOVE, THERE IS NOTHING TO PREVENT NEGOTIATING WITH THE AUTHOR/PUBLISHER TO AGREE TO A LOWER RATE (OR TO OUTRIGHT BUY THE SONG)(AND THEREBY MAKE MORE PROFIT FOR THE LABEL)

HOPE THIS HELPS.

Well,
The soup do get thick at times. I know everything there is to know about the music business except the Greek part. It's all Greek to me.

Hey Everett,

To my understanding, no, unless it's for commercial i.e. comsumer release.

Why would you try and pitch some one elses song ?

As the artist ?

If so, there's no harm done.

Mind you, I'm not a laywyer. Check with the pro's.

cheers,niteshift

As Stu said above, not only commercial release, but also publishing (publicly disseminating) is protected. My old example is this: what if I decided to copy by hand the latest John Grisham novel and then give copies of it to my friends. It's not a commercial release, but I've violated Mr. Grisham's copyright...he or his agents or assignees are the only folks who have the right to copy (copy...right) his work. It's similar with music.

OK,
Let's look at this from a practical point of view. Say a Producer puts out a call for songs for an artist. They get 2000 songs to go thru. Finally after a lot of work they settle on 25 songs for the album of which will contain 10 songs. Because they are still not sure of the final 10 they decide to go in the studio and record all 25 songs. This could take a few months or weeks. After they have done the final recordings, mixings and listening to decide which ones they will put on the album then they apply for the mechanical license or pay the fee if it was decided in advance for the 10 songs that make the final cut.

Now tell me, would you send all the copyright holders of the 15 songs that didn't make the cut 91 cents for a mechanical license? Would you, really? I rest my case. Your Witness.

I wouldn't cut a song for myself without an agreement. I played on a session years ago, the artist cut a song they heard at a writer's night without getting permission from the writer. When the writer found out they were cutting his song, he came into the studio and stood there watching as the tape was erased. It was a big waste of money. I'd recommend getting something in writing from the copyright holder. As Stu said, a deal may be negotiated where the owner of the demo doesn't have to pay the songwriter anything unless there's a commercial release, but I wouldn't recommend assuming that it's ok.

In your case, Ray, If I were the producer, by the time I settled on those 25, the writers would have been contacted and negotiated with. The first note wouldn't be recorded without a written agreement. As you say, I certainly would not send the writers any money. Of course, the label or artist might, if they wanted the song bad enough.

Mike,
Why contact a copyright holder on a song that may never be released? I doubt if any Record Label or Producer does that until the final songs are selected. In my example songs are submitted to a producer for a possible cut and (I would hope) the person submitting the songs knows how it works. Your example of an Artist cutting a song out of the blue with no process of pitching the song to that Artist smacks of amatuerisim on the part of the Artist. I am often amazed but shouldn't be surprised of those not knowing how the music business works. IT IS LONELY AT THE TOP!

In my case I have a song submission form, a permission letter, and a mechanical license in case a song of mine is selected for release. They cover the steps very carefully so no one is confused about what to do.

If you re-read Everett's question you can see why no one would require a mechanical license to use their songs for a demo to pitch to a Label.

If someone likes your songs well enough to make an Artist demo, they may also release them and you get a cut.

There is probably no exact way to inform someone that a song of his is under consideration for commerical release. Sometimes a song is put on hold by an Artist and never released. If the songwriter(s) are notified before hand and the song is passed on it is pretty disappointing.

If I were a producer I would not notify any one until the final selections were made. If I couldn't get all of my first selections I would have the others for backup.

I had a song placed with a publisher who placed it with a group in Europe, who recorded it but never released it, but held it in the "can" for future consideration.I was never informed of this until I asked for my song back,as the reversion clause had expired.I don't know if that group had to get written permission or not to record it.

Many artist keep songs "in the can" that never get released until after they die,then every thing they ever recorded suddenly becomes of commercial value.Funny isn't it,I guess it's like a painter artist,he/she starves while he/she is living but after he/she is dead,others make millions on his/her work.It's a cruel world.

Ray,

You asked me:

"Mike,
Why contact a copyright holder on a song that may never be released?"

Because I have no "right" to "copy" the song. What if the song is already on hold with another artist? Hearing a demo of that song could hurt the deal, in which case by having copied without permission, the copyright owner may have cause to seek damages from me.

In Everett's case above, his publisher had power to assign the right to copy, but as I read your question, you seem to be asking about copying a song without someone's knowledge. I'm not a lawyer, but I can't see the difference between doing that and illegal downloading. It's not the sale of the item, it's the copying.

Mike,
Why don't you ask some Producers/Artists/Labels if they have ever recorded pitched songs for a further evaluation but not released and not notified the copyright holder as I suspect they do from time to time. I would be interested to know what some of them say.

I had a session today at Razzy Bailey's studio. Here's some info on him:

http://en.wikipedia.org/wiki/Razzy_Bailey

Razzy said major label producers would not cut a demo on a song pitched to them without securing a "hold" on it. They wouldn't want to spend money on it only to find out that in the meantime, someone else had it on hold.

He then related the story of a singer who brought him a song that was pitched to her from a publishing company. She wanted him to record her on it right away as a vocal demo. Razzy said she'd have to wait until he secured a hold on the song, they gave him six months, which he told me he thought was long for an independant label. He said three months was more usual for independants, but a longer time would not be unusual to hold for a major artist.

Razzy also said he wasn't a lawyer and didn't know what the legal ramifications were, only the general business practices.

However, this strays a bit from the original question, whether one needs to secure mechanical license for a demo. It looks like no, if you get a hold on an uncut song. I have no idea what the legality is on a cover song.

All the Best,
Mike

See, the problem with these kinds of forums is that people ask for advice, and there are two ways of looking at things. Some folks want to look at what they call the "practical" aspect (e.g. how do lots of people do things - even though they may be doing it wrong and getting into trouble) and some folks want to know about the legal ramifications and how things should be done properly.

Yes, as a practical matter, there are songs being recorded all the time without a proper license being in place. That doesn't mean its the right thing to do. It's illegal, and what Mike and I are trying to get across is that its also potentially dangerous financially and not worth the risk when you know how easy it really is to clear the rights.

Ray asks: "Mike,Why don't you ask some Producers/
Artists/Labels if they have ever recorded pitched songs for a further evaluation but not released and not notified the copyright holder"
First of all, as a practical matter, the Producer, Artist or Label probably doesn't even have access to any song they want to use without the knowledge of the author/publisher. That's why they deal with publishers and "song pitchers." The publishers, and noted "pitchers" already have the licensing for the song lined up. They are in the business of getting the best, pre-screened songs to the artist/producer, and that's how the song gets attention in the first place. That's also why unsolicited material that arrives at the record company goes stright in the garbage. If there is ever an argument that somebody sent a song to a record company and they ripped it off or used it without permission, the record company can show that its course of business is to avoid listening to anything that is not professionally presented. Furthermore, if you're a recording artist, there's usually a clause in your record deal that requires you to indemnify the record company if you don't have the rights to the material you record.
If there's a written on-hold agreement, that usually inclueds a license to record the song. It can be something as simple as a letter of intent.

The next question is - "why contact a copyright holder on a song that may never be released?" I think Mike answered this very well with his examples. I would only add that to do otherwise is to invite the sharks to go for for a swim. By the way, nothing says that you actually have to pay for the license to record the demo. This kind of licensing can certainly be done on Spec. However, the most professional way to go about it (and the way that protects everyone) is to get an agreement, in advance, and have permission to record the song.

Of course, I have not reviewed the "song submission form, permission letter, or mechanical license" referenced in the example above, however, there still appears to be some confusion (even after all the times we've posted on this topic), about what a mechanical license is. If you negotiate the license for the song, it's not a "mechanical" license. Most deals I've seen are not done with mechanical licenses. My experience has been that Recording Artists, Producers, and Record Labels are not in the habit of giving money away when they don't have to. Since they can negotiate a deal to get the song for less, major players don't use mechanical licenses. Mechanical licenses are handy when the school band wants to put out a record and sell a hundred copies, or when a minor player wants to release a recording of someone else's song in such a limited quantity that it would be a waste of time for the author/publiser to negotiate, but major players aren't going to use mechanical licenses if they can make more money by avoiding them.
Remember, the copyright holder owns the right to license the work whenever and however he/she wants to, and if it's a new song being pitched, which has not yet been published, a mechanical license isn't even available.

Well,
I wonder why Harry Fox issues a mechanical license when someone licenses a song? If that's not what they use, what is it?

What happans when a Record Label records an album and then never releases it? The songwriter's may know about it but????

Without going thru a lot of information on the Copyright Web Site how does a Publisher send out song submissions without making copies of them?

Maybe a Fishing License isn't a Fishing License. I have read tons of information over the years about how the music business operates but maybe all that information is bogus.

I wonder what all that information in Section 115 of the Copyright Act is all about. Can't be about mechanical's. It must be about automobile repairs.

Around and around and around we go, and where we stop, nobody knows.

RAY:
IN ANSWER TO YOUR QUESTIONS:

Q: "I wonder why Harry Fox issues a mechanical license when someone licenses a song? If that's not what they use, what is it?"
A: A HARRY FOX LICENSE IS NOT TECHNICALLY A MECHANICAL LICENSE. FOX IS A CLEARING HOUSE FOR LICENSING. SOME OF THE LICENSES THEY ISSUE ARE ISSUED AT THE MECHANICAL PAYMENT RATE, BUT THEY ALSO REPRESENT THE COPYRIGHT HOLDER FOR NEGOTIATIONS FOR OTHER RATES WHEN THE NUMBER OF COPIES TO BE MADE IS SIGNIFICANT ENOUGH TO WARRANT THE NEGOTIATIONS. IT IS NOT NECESSARY TO GO THROUGH FOX, OR ANY OF THE OTHER CLEARING HOUSES, TO OBTAIN A MECHANICAL LICENSE, IT'S JUST EASIER BECAUSE YOU DON'T HAVE TO DO THE LEG WORK TO TRACK DOWN THE OWNER OF THE COPYRGIHT IF FOX ALREADY REPRESENTS THE SONG.


Q: "What happans when a Record Label records an album and then never releases it? The songwriter's may know about it but????"
A: WHAT DOES THIS HAVE TO DO WITH ANYTHING? ARE YOU SAYING THAT THE RECORD COMPANY DIDN'T HAVE PERMISSION TO RECORD THE SONGS IN THE FIRST PLACE? THEY PROBABLY WOULD'NT HAVE MADE THE RECORDING WITHOUT IT.

Q: "Without going thru a lot of information on the Copyright Web Site how does a Publisher send out song submissions without making copies of them?"
A: THEY DON'T, BUT THEY DON'T NEED A LICENSE OR PERMISSION TO MAKE THIER COPIES BECAUSE THEY HAVE ALREADY BEEN ASSIGNED THE RIGHT TO DO SO (COPYRIGHT) AS PART OF THE PUBLISHING DEAL.

Q: "Maybe a Fishing License isn't a Fishing License. I have read tons of information over the years about how the music business operates but maybe all that information is bogus."
A: PLEASE GIVE ME A CITE TO A RELIABLE PUBLICATION THAT SAYS YOU SHOULDN'T CLEAR THE RIGHTS BEFORE RECORDING THE SONG. I WOULD HAVE TO SAY THAT ANY SUCH INFORMATION YOU HAVE BEEN PROVIDED IS UNRELIABLE. I DON'T KNOW ABOUT THE OTHER INFORMATION ABOUT THE MUSIC BUSINESS TO WHICH YOU REFER, BUT IF THEY'RE TELLING YOU THAT YOU CAN JUST MAKE A RECORDING OF SOMEONE ELSE'S WORK WITHOUT PREMISSION, THEN SOME OF THE OTHER INFORMATION YOU HAVE RECIEVED IS PROBABLY ALSO UNRELIABLE.


Q: "I wonder what all that information in Section 115 of the Copyright Act is all about. Can't be about mechanical's. It must be about automobile repairs."
A> IT MAY BE ABOUT MECHANICAL LICENSES, BUT THEY ONLY APPLY IN CERTAIN SITUATIONS AND NOT IN OTHERS. THE PROBLEM IS THAT PEOPLE SOMETIMES OVER USE THE TERM "MECHANICAL" TO REFER TO ANY KIND OF LICENSE, WHEN WHAT THEY REALLY SHOULD BE TALKING ABOUT IS "CLEARING THE RIGHTS." THE RIGHTS CAN BE OBTAINED IN MORE THAN ONE WAY, INCLUDING PAYING FOR A MECHANICAL LICENSE, BUYING AN INTEREST IN THE COPYRIGHT, AND THROUGH NEGOTIATED LICENSING.

Q:"Around and around and around we go, and where we stop, nobody knows."
A: HOPEFULLY, WE STOP WHEN PEOPLE GAIN ENOUGH INFORMATION TO UNDERSTAND HOW THIS WORKS SO THAT CERTAIN MISPERCEPTIONS CAN BE CORRECTED.
WE'RE ALL IN THIS TOGETHER.

http://www.aracnet.com~schorn/royalities_mech.html

Link not working for me.

You will have to type it into a search engine such as Google. For some reason some links don't work from here.

Well for one thing, royalties is not even spelled right in that link, so what does that say about what might be contained in that link?

This exchange has been very educational, and I am glad for the lively discussion, because it has drawn very well thought out answers from both Mike and Stu. But if that link is to support the notion that you don't have to secure some sort of permission (license or written hold or whatever) before recording a demo, well it seems like the point is moot and has already been fully answered. I too have read advice that says to record the song first and then secure the licensing later. I'm sure that does happen. But for my money, Stu and Mike's experience (probably combined they have 60 years at a high level in the music business) and logic would lead me to believe in what they have to say about this. Besides, their examples and logic are rooted in the law. Except for the exclusions in the law, you can't copy something without permission.

awe never mind...

Sorry.
Trying to copy those tiny words can be difficult!
Maybe I can type the correct link this time.

http://www.aracnet.com/~schorn/index.shtml

If the link doesn't work it can be accesed on Jeff Mallet's Web Site under Legal links. It may be Intellectal Property Resources.

Harry Fox does use the term on it's form: MECHANICAL LICENSE REQUEST. Harry Fox has been around since 1927 if I remember correctly.

You can split Frog Hairs all you want to but the term is about standard today. I have downloaded a few Publishers forms of which they use the term on the form: Mechanical license.

While it may never happen, or rarely, there are a lot of Record Labels out there in other parts of the country who may record a song to see if it can be released and pass on it but notify no one about it and who would know. Once again it is splitting Frog Hairs. A compulsory license is where someone wants to release a cover song but the publisher refuses to issue a (dang) mechanical license. Then they have to go thru the copyright office and obtain the license. There are restrictions in the compulsory license.

The truth is most of us will never have a song released anyway so this is all pretty moot.

Donald Passman says something to the effect that mechanical devices to reproduce music went out in the 1940's,when the Wind Up Victrola was in use and everything WAS mechanical. No amplification in those days! Anybody seen a Victrola lately?

I haven't seen a Victrola lately, but my wife has a Graphanola. She loves to play that thing.

Here's a link that might be helpful:

http://www.harryfox.com/public/licenseeServicesMechanical.jsp

It is to the Harry Fox Agancy, the largest administrator of mechanical licenses.

Not to be redundant but to back up some of the information here...

As a publsher, In almost all cases, when one of the copyrights I represented was going to be recorded ,I was informed. I was informed a few ways....Either through a clearing house agency , Harry Fox is not the only one, or a producer would call and ask about the situation with this "song"...Or a record company person would call and ask for the info ,writer etc..

Record lables are known for being very slow on the uptake with obtaining a license , permission from the publisher. The publisher is the one who issues the license, record companys will "provide" you with a license just to make it easy...you should as a publisher have your own version of the license being issued.
Now sometimes it is in your best interest that the record company is "slow" in getting to you...It is common practice for a record company to ask for a "rate" in the price ...meaning they do not want to give you the full rate you are due...Sometimes they want to cut it down by half of the going rate...Well if they have been slow in getting to you, and they ask for a rate ,you are in a great position to say NO , I want the full rate period...
Some folks will cave in, just because they have a cut they will accept the reduced rate. I never have ,I go for the full rate ...the album has been finished..The likelyhood of them dropping the song off of the album is almost nil.
Yes they have not gone by the letter of the law , but it is pretty standard behavior, like it or not...But as I have said ,that can be in your favor.

I also have had many songs cut that are still on a shelf somewhere in "nonreleaseheavenorhell"...I know they were recorded, sometimes I was in the studio when they were cut ,sometimes the producer called me while they were cutting the song and I could hear it...But for what ever reasons the album never came out..I was never asked for a license ...and one was never issued, there was no release in any form of the song.
Most publisher will just let it ride...Whats to be gained.

hope this helps a bit ..

Dude

www.songconsultant.com