How to legally post a "cover" on NWR

DonF

DonF

Call Me "Grandpa"
I want to post a cover on NoWhereRadio.com. In order to be legal, and to comply with the NWR terms & conditions, I must have permission from the song's copyright owner. No problem. I go to Harry Fox (dba SongFile.com) and start filling out their web form.

But they require some things that I can't necessarily provide.
  1. Ironically, the online form has no option for Internet delivery of the "product". The only options are for CD, cassette, etc. The PDF form at HarryFox.com is similar.
  2. The "new media" application requires information about NWR's ISP, the location of the servers, etc. I'm not registering the entire NoWhere web site, only one song! So, the "new media" application seems completely inappropriate for what I'm doing. What I need is just a simple mechanical license.
  3. Harry Fox states that they issue "mechanical licenses that are valid for products manufactured and distributed in the USA (including its territories and possessions) only." I can't control where the electrons go, except that I'm pretty sure that NoWhere's server is in Canada, which, when last I checked, was not part of the US. :D
  4. Mechanical license royalties are based on the number of units manufactured and distributed — so I would need to be able to count the number of downloads. NWR does not seem to provide this information (only the number of streaming plays). Does anyone know of a way to get this information?
I'll stop there. That's enough questions. If anyone has any ideas, I'm all ears. Surely someone has been through this before! Or maybe I should just forget about covers and do something original. :p

Thanks,
Don
 
I did email them, but they weren't as helpful as I had hoped. They said that I would need to track the number of downloads. I did not address the US/Canada issue with them.

My feeling is that this is still uncharted territory to some degree. That's why I was wondering whether anyone had begun charting it yet. The industry still seems to be geared to moving tangible products. I may have to deal directly with the publisher in this case.
 
I've already gone through this. You're right, this is un-charted ground and it won't be cheap for us small guys. The best thing to do is just do the cover, put it on your own website and link people to it. OMD sites won't knowingly place covers on their sites for obvious legal reasons. MP3.com allowed it, and there were many legal battles from that. Bottom line, do originals and buy mechanical lisences if you're going to put covers on your cd. Put covers on your own website, you're still legally responsible, but at least the chances of you getting caught are pretty small.
 
I would like to post the beginning of a well-known song, just to illustrate how it is counted off. The clip would consist of me counting it off (as in "1... 2... 3... 4...") followed by about 15-20 seconds worth of the song.

The song is Led Zeppelin's Rock and Roll. It does not begin on the 1 of the measure but this is a very difficult point to make to the rock drummers and guitarists I've played with. I recently created a short clip of the intro counted off by me. It has really opened some eyes (um, ears) and I'd like to post it somewhere.

I recall reading or hearing something about a "fair use" provision. What is that about and would it apply here?
 
homeuser said:
...[ I]t won't be cheap for us small guys. The best thing to do is just do the cover, put it on your own website and link people to it....
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I consider $40 (which is the minimum license fee collected by HFA, covering up to 500 copies) to be a pretty good deal, considering the talent and hard work that go into creating a song. I want to compensate the author for my use of his work! The problem as I see it is that not all distribution channels available to me have built-in meters, so it's hard to calculate the author's royalty by traditional means. Also, if the charge is based on a simple count of downloads, someone who saves the song and listens to it repeatedly is counted equally to someone who listens once, says "what a pile of crap!" and immediately deletes it. That doesn't seem quite right to me.

One idea I had was to request that users who download and keep the song "register" it by sending me email, or something like that. I don't think this would satisfy the bean counters at HFA, though.
EddieRay said:
I recall reading or hearing something about a "fair use" provision. What is that about and would it apply here?
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Fair use mainly applies to educational use of copyrighted material. What you've described actually sound pretty close to fair use as I understand it. Here's a definitive guide to fair use: [CLICK HERE].
 
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Fair use would not apply in that instance, as it would be publicly accessable to anyone, not neccesarily students. And unless the person posting it is a member of an educational institution, it wouldn't fly either.

W.
 
TheRealWaldo said:
Fair use would not apply in that instance, as it would be publicly accessable to anyone, not neccesarily students. And unless the person posting it is a member of an educational institution, it wouldn't fly either.

W.
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I'm no lawyer, but after reading a lot of the text at the link above I think the use of copyrighted material by teachers and students is simply an example of fair use. In fact, my reading or the "four factors" tells me I <b>might</b> be on pretty solid ground; I would be using a very small portion, I wouldn't be cutting into anyone's market, and I would adding "new information... insights and understandings" to the original material.
 
wouldn't be cutting into anyone's market
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The band could decide to get into teaching lessons with their material, or someone may have already licensed the material for that use.

new information... insights and understandings
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That would have to be included in the recording, as the recording can be distributed without the 'information'. To provide enough information to get away with this, the length would be increased, repeated, etc. and the 'small portion' bit might fall away.

Only one thing you might get off on would be the 'small portion', although, they'll usually judge against you if the song is recognizeable as the original within 5 seconds of its start.

Posting material on any server requires you to comply with their TOU. The TOU on the majority of servers states that you own the works, or have sought copyright permission, and have documentation to prove this. 'Fair Use' does not provide this.

Unfortuneatly, 'fair use' breaks down to the copyright owner, and the judges discression. It's kindof like pleading insanity after killing someone, it 'might' get you off.

W.
 
TheRealWaldo said:
Posting material on any server requires you to comply with their TOU.
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Waldo, can you post a link to NWR's terms of use? I've been searching for a while, and have not been able to find it.
 
Thanks.

I had an idea that might satisfy everyone concerned: What if my "product" was not the downloadable mp3 file, but a CD, which would be shipped to customers on request? The mp3 file, then, would just be part of an advertisement for the product. After all, the customer has a right to know what he's getting, right?

I can easily secure the mechanical license to make the CD's, and can easily make sure that I don't ship more CD's than I'm licensed for. (In fact, I'd be very surprised if I shipped any CD's!) Anyone see a problem with this? Would this be a violation of NWR's terms?
 
As long as you secure the rights to use it in the method you choose, and have written proof of this, you would be fine.

W.
 
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