Recording a cover song?

S

scorpio01169

New member
I have a band that I'm recording next month and they asked if they could add a cover song to their album. I explained to them the legalities and I have a feeling that they're gonna wanna record it any way. My question is if anyone knows, am I liable in anyway for recording a cover song for them and they sell copies of their cd without the proper mechanical license?
 
I'm not an attorney and you should use your own judgement but, as long as you're not handling publishing & distribution, I don't believe you would be held libel (which should not to be confused with not being sued and having to defend yourself) since the act of recording the cover itself is not illegal; the act of the band selling the song on an album for money without a mechanical license is the issue. If you're really concerned about it, check with an attorney and or have the band sign a waiver (drafted or at least reviewed by your attorney) that indemnifies and holds you harmless in the event of a suit (from the band or 3rd party), that way if you were to get sued, it would all fall back on the band. I've seen, and I'm sure you can find, fairly standard recording contract on line that should have an indemnity clause in it that you can add to your contract or use as the basis of the waiver. This is pretty common stuff for an attorney so it shouldn't cost too much to ease your mind at the very least in the end you would end up with a contract and or waiver that you can always reuse.
 
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Given the fact that you can pretty much be sued by anyone for anything in the US, if they are paying you to record the cover song you might just be better off avoiding recording the cover. There is so much double speak regarding use of copyrighted material it is a virtual mine field. I'm not sure that the act of recording/reproducing the cover for profit isn't a violation of publishing rights of the original song writer.

Seek real legal advice...
 
No one is going to sue you for engineering the recording of a cover. That would be like the music store that provided the equipment getting sued also.

If the artist/band want to use a cover on a CD that they are going to sell/distribute...THEY need to get the licensing rights.

You don't really need *permission* ahead of time to actually record a cover...it's just common sense for the *band* to do that in advance, if they plan on selling those CDs.
 
As others have said, get real advice. As far as I understand, artists have a right to record covers. The problem comes when they try to avoid paying royalties. If I were just the recordist on the session, I wouldn't be too worried--me, personally. But I could be wrong. As somebody pointed out, getting sued is an expensive pain even if the case is without merit.
 
Here....this gives some fine-details of the gray area.

Basically...if you just *engineer* and you don't stand to gain anything from the sales of the CD...you don't really need to worry about getting sued.

If you are also the producer, and/or you will be getting compensated from the sale of the finished CD...then it's different...you can be consider as artistically involved with the recording and it's sales.

I've never heard of engineers needing to get copyright permissions and licensing to record a cover...only the artists.

In Music We Trust - Copyright and the Recording Studio
 
miroslav said:
No one is going to sue you for engineering the recording of a cover. That would be like the music store that provided the equipment getting sued also.

If the artist/band want to use a cover on a CD that they are going to sell/distribute...THEY need to get the licensing rights.

You don't really need *permission* ahead of time to actually record a cover...it's just common sense for the *band* to do that in advance, if they plan on selling those CDs.
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Well, this may or may not be true but I think you may be confusing having a suit filed against you and having judgment rendered against you. To that point: I would say it depends on who's song is being covered and by whom. If an "A list" band covers another "A list" band's song I would contend that the attorneys (given their nature) for the original song writer, publisher, and or artist (which could all be different people/entities) will sue everyone involved (just for affect) and let the court settle it. Now if some guy/band in a garage releases the same cover in low distribution it is less likely (key word being less) that mass suits would be filed. However, more likely is the band gets sued then turns around and sues the recording studio claiming that they didn't know and the studio should have told them this was a problem which is why in my original response I suggested indemnification form the band and or 3rd party suits.


Lots of what ifs I know but not out of the realm of possibilities, I've seen suits filed for a lot less . At the end of the day the only liabilities would be for royalty payments (not likely to amount to much if low distribution) and legal fees which could be more significant. Not sure where you're located but here in NJ I suits get filed for a lot less....I need to move :facepalm:
 
The person who records the song has no way of knowing the copyright status of what he records. If a band play something you have never heard of, that doesn't mean they wrote it? Who fills in the metadata tags that list composer and the other people concerned with the recording? You will get the engineer credit. I know there is something in UK law that prevents you absolving yourself - so you can't make the client sign something that says copyright clearance is the client's responsibility.

Legal advice seems sensible here, because this could well be something quite different from location to location. When I'm doing video work, and a client gives me a picture that says Getty Images on it, I refuse to use it without clearance, because I've seen the Getty invoices for illegal use. On the other hand, when I've produced audio for a client - usually short run CDs, I clear the rights on their behalf and charge them for it.

As far as I can, I try to do it properly. I always makes sure the rights cost is clearly shown on the invoice so they don't think I'm ripping them off.
 
Simman said:
Well, this may or may not be true but I think you may be confusing having a suit filed against you and having judgment rendered against you. To that point: I would say it depends on who's song is being covered and by whom. If an "A list" band covers another "A list" band's song I would contend that the attorneys (given their nature) for the original song writer, publisher, and or artist (which could all be different people/entities) will sue everyone involved (just for affect) and let the court settle it. Now if some guy/band in a garage releases the same cover in low distribution it is less likely (key word being less) that mass suits would be filed. However, more likely is the band gets sued then turns around and sues the recording studio claiming that they didn't know and the studio should have told them this was a problem which is why in my original response I suggested indemnification form the band and or 3rd party suits.


Lots of what ifs I know but not out of the realm of possibilities, I've seen suits filed for a lot less . At the end of the day the only liabilities would be for royalty payments (not likely to amount to much if low distribution) and legal fees which could be more significant. Not sure where you're located but here in NJ I suits get filed for a lot less....I need to move :facepalm:
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Mmmm...

The recent lawsuit (or whatever it was called technically) against Sam Smith for "stealing" some of Petty and the Heartbreakers material for one of his recorded songs (one that he even got a Grammy for)...didn't include suing the engineer who pressed RECORD.
I'm not saying some nut-job layer might not try and sue the janitor who was in the studio sweeping up at the time...but guys, engineers don't get sued for that type of stuff. :D
I wouldn't hesitate to record a band doing covers. It's their CD, their release...though if they seemed rather naive about things, I would certainly ask them if they did or suggest that they get the licensing before proceeding...in case it's denied (rare).

Bottom line...copyright infringement cases are about recouping financial loss from someone else making a sales profit off your property. The engineer (in most standard situations) is not gaining profits from the *sale/distribution* of the covers.
The band, producer, record company are.

I mean...what if it was some totally obscure cover...why would the engineer even know, or need to know who wrote the songs?
The band would.

Hey...if it makes anyone feel more at ease to obtain licensing to *engineer* a recording...go for it. I think you will find that the agencies will tell you that you don't need it. I mean, we can debate it here...but it's just a phone call. :)
Try the Harry Fox Agency...they can provide info.
 
I wouldn't be surprised if someone could sue for this but its a bit like suing a car manufacturer for a hit n run driver, as others have said why should the owner / engineer even care who wrote the song?
 
It really depends on how lawyer vs lawyer sees it. Possibly as an "accomplice" by some?

I agree with asking a music biz legal eagle before deciding. Good luck!
 
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