Recording A Cover Band

L

LittleStudios

New member
Not sure if this is in the right place but any. My question is, if I'm providing a service by recording a band that plays covers. Am I held responsible for copyright infringement if the cover band did not acquire the proper copyright liscences (permission to use)? Also how do studios deal with recording bands, because how can you be sure that the band's music is "original" and not stealing copyrighted material? Or do I even need to worry about it, like is it their issue not mine kind of thing?

Thanks
LittleStudios
 
Technically, as long as the final product isn't going to be sold for profit, then there's no wrong-doing.

And even if it were, there would have to be enough money and attention being generated from it just to warrant the original artist to even bother with any legal action at all.

Neither of these is likely to be the case. And even if by some odd twist of fate it were ... you have nothing to do with any of it ... unless it's your band. You're just the engineer. A monkey boy who points microphones for a fee. :D Not your problem.
 
thanks daisy, it's just that messing with copyrights can be a scary thing. yeah, I'm basically the monkey aiming mics at stuff and pressing record. So it's the band's responsibillity not mine?
 
From what I understood, you are partly liable for recording a cover. Like Daisy mentioned, in reality nothing will probably happen unless certain conditions were met, but that is no guarantee. I would imagine that if the cover you recorded was at all obscure then pleading ignorance to that fact would probably be enough to cover you. If it was some current or older mega hit then you might have a harder time. Copyright stuff can be very tricky and very hard to understand.
 
If you are recording the band's live performance in a bar or auditorium or some such venue, the band has no obligation to pay anything to perform the songs. The "performance license" in that case is paid by the venue itself via a yearly ASCAP (in the US) dues license. and there's no obligation on the part of the band whatsoever.

For the recording, however, that comes under what is called the "mechanical license", and yes, the band is responsible to pay the royalties to cover that, and yes, if ASCAP wished, they could and probably would pull you into it as well.

If you are just making a recording for the band to distribute for free demos on a limited run, while still technically responsible, ASCAP probably won't care much about that at all. If/when the disc is retailed or resold, however is when they'll sit up and take notice.

While they probably won't come chasing after anybody of their own volition unless the recording has fantastic sales figures, all it takes is one disgruntled drunk audience member to decide thy are going to get even with the band for kicking him offstage, to report the situation to ASCAP in retaliation. While unlikely, it has happened more than once. This would probably generate a letter form their lawyer requesting either a cease and desist request, or a request to pony up for sales so far - along with a sales report from the accountant - or both, with a warning that if they continue down the current path and don't straighten up after that, they and you could then be threatened with a lawsuit. Agreening to stp sales and pay a small royalty sum or settlement fine would resolve that situation with no more ado, probably.

It costs them virtually zero time or money to send out that letter, since their lawyers are on retainer anyway; the lawsuit would only come if the band flipped them the finger and just kept going without stopping or reporting sales, and only if the sales were enough to warrent their time and energy.

Chances are slim that they'd have trouble, but it's like car insurance. The royalty fees are so minimal, that it's stupid for the band not to just do it right and pay them if they want to sell the CDs. If they don't, I might consider handling that yourself, and folding those fees and an extra fee for your own labor into the recording charge, just to cover your ass. That might lose you the recording gig, but it'd keep you safe. It's totally up to you as to whether you want to take the odds. Best bet it to just tell the band to do it right.

The Fine Print: I am not a lawyer, nor do I play one on the internet. This information is not guaranteed to be 100% accurate and should not be considered actual legal advice. Reprints or retransmissions of this post cannot be made without the expressed written permission of Major League Baseball. Container Refund value, 5 cents, except in MA and DE. Viewer discretion is advised. Trucks over 5 tons prohibited. No swimming or diving. :D

G.
 
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thanks for all the help. well, I contacted the copyright office of the library of congress. what i was told was that it was doubtful that i would be held liable and that it was the band's responsibility. on the same token, the representative stated that he was not a lawyer and cannot be taken as 100%accurate. i was given a number by the representative to contact. the number was to a lawyers office of the arts here in Maine. so I'm waiting for a call back.

I told the band when I first realized that they were a cover band that they should look into getting permission to record / perform the songs. I'm not sure what they'll do.

I'm not willing to risk my neck for a local cover band.

is there a difference between the license to record (Mechanical License) and the license to perform? Should I tell the band to always check that the venue has acquired the license to have bands perform copyrighted material or just tell them to save the trouble and get the licenses themselves?
 
LittleStudios said:
is there a difference between the license to record (Mechanical License) and the license to perform? Should I tell the band to always check that the venue has acquired the license to have bands perform copyrighted material or just tell them to save the trouble and get the licenses themselves?
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Yes, there is a big difference. As I said, the Performance License is the responsibility of the venue, not the band. NOTE: This is different with live theater in which there is a seperate license the theater company must get to perform a copyrighted play or musical. But for live cover music, there is no such performance license required by the band. Nor are they held responsible for playing in a non-ASCAP venue; this is as I understand it entirely the responsibility of the venue only.

The Mechanical License is a different story, however. This is for the recording and sales of cover music, and is the responsibility of those making the recording. My understanding is that this can include the artists and/or the producers or label releasing the recording. The recording studio may be targeted if it is arguable that the studio is acting as producer or in a kind of indie label kind of capacity. Again, remember how things work in law; it doesn't cost the plaintiff anything extra to file a suit with 10 names on it than one with one name on it. Often on the first round they'll put some extra names in the defendant's list for any given lawsuit just to cast their net wide and apply maximum pressure in showing their seriousness; the worst that can happen to them is that the judge will dismiss charges against any defendant for whom he feels the charges are not aplicable.

Same discalimer as last post.

G.
 
Thanks Glen. Well not that I don't believe what you are saying, but it's in my best interest to research everything. So I checked out ASCAP and BMI and I was looking to see if they offered licenses to bands. To my surprise I only found licenses for businesses (venues, restaurants, websites, broadcast, etc.) and none for "bands". Seems Glen, you are correct about venues providing the Liscence to perform.

The band is basically looking for a CD to let venue owners to listen to so they can show them what they sound like. To my knowledge the disc is not going to be sold. I should probably still suggest obtaining a Mechanical License.

Thanks Glen and everyone who's replied. I really appreciate the input.
 
LittleStudios said:
The band is basically looking for a CD to let venue owners to listen to so they can show them what they sound like. To my knowledge the disc is not going to be sold. I should probably still suggest obtaining a Mechanical License.
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That would be going waaaay overboard. But it doesn't hurt to suggest it. At the very least, it will make you look like you know what you're talking about (and they'll be impressed). :D
 
I do have another question. How does it work if the band is getting paid to play at a venue? Is it still just the venue that needs to provide the license to perform or because the band is getting paid, do they too need a license?
 
LittleStudios said:
Thanks Glen. Well not that I don't believe what you are saying, but it's in my best interest to research everything. So I checked out ASCAP and BMI and I was looking to see if they offered licenses to bands. To my surprise I only found licenses for businesses (venues, restaurants, websites, broadcast, etc.) and none for "bands". Seems Glen, you are correct about venues providing the Liscence to perform.

The band is basically looking for a CD to let venue owners to listen to so they can show them what they sound like. To my knowledge the disc is not going to be sold. I should probably still suggest obtaining a Mechanical License.
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I guarantee that the part about the performance licensing is correct. I've worked with more cover bands than I can count over the past 30 years, and the performance licensing part of it I can promise to be solid advice.
LittleStudios said:
I do have another question. How does it work if the band is getting paid to play at a venue? Is it still just the venue that needs to provide the license to perform or because the band is getting paid, do they too need a license?
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If they're just cutting a demo CD, don't worry about it. It's only recordings that are sold for money or are broadcast for money or played in a juke box, by a DJ or in a karaoke machine for money that anyone cares about. Remember that the bottom line is the bottom line ;) ; all ASCAP, BMI, etc. and the original artists want is a cut of the revenue their song generates. If there is no revenue involved, they don't care.

But like Daisy said, it couldn't hurt your reputation as a professional to at least professionally broach the subject with your clients, and to let them know that if they are ever thinking about selling the CDs, that they will require a mechanical license for that. You could always offer that as an extra service if that time were to come.

G.
 
Great, thanks for the info. If you don't mind, I have one more question. I just spoke with one of the band members tonight and I mentioned all the new info that I've learned. When I mentioned the bit about venues providing all necessary licenses, she said to me, "Well we mostly play parties for people, like in their backyards." I then asked, "Are these people going to pay you for your performance?" and she answered "Yes."

So how does this work?? This small bit of information that I recieved from the band member is all new to me. So, yeah. I highly doubt a family or small group of people are going to be purchasing the Performance License. In this situation, should the band have a license to perform? I'm sorry for all the questions. And yes I do understand that you're not a lawyer, so I'm not going to hold anyone but myself accountable for the information received.

Thanks once again.
 
I can't say for sure how it legally falls if it's a private event buy a non-business entity like a backyard party. Perhaps, technically speaking, the owner of the home/manager of the party may have a responsibility, but perhaps they are also exempt, since they are not making any money on the deal. I don't rightly know. I do strongly suspect, though, that whatever the "rules" about that, that it's not something that anybody is really going to care much about.

The only reason I could possibly see someone from ASCAP etc. caring about private parties would be if someone were actually making a full-time business or living out of throwing or managing such parties. Then it probably would qualify as a business venue, regardless of actual location.

But no matter how you slice it, AFIK/FWIW, the performers themselves still would have no concern in the performance licensing aspect, whether it's a public or private performance.

Again, the exception being theatrical performances in which rights to perform must be obtained by the performance company. But unless your clients are about to do a community theater revival of "Jesus Christ Superstar", they needn't worry about that ;).

G.
 
I think my worries are legit ;) I just want to make sure that things are done legally. The laws are there for a reason. Just like using pirated software actually hurts the industry and causes prices to sky rocket. if everyone simply obeyed the law and purchased software, we would see prices drop and have better research and development. then again that would be a perfect world and that's not what we live in.

Just trying to do my part :D
 
You know what would get this all sorted out beyond all reasonable confusion?

Somebody needs to blatantly violate all the copyright laws he can get his hands on and then report himself to the ascap. After the lawsuit, he should be able to fill us in on all the details.

Not it! :D
 
LittleStudios said:
I think my worries are legit ;) I just want to make sure that things are done legally. The laws are there for a reason.
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You ever pick up a guitar and sing a Beatles song while at a party? Michael Jackson's lawyers could probably come after you for that if they really wanted to.

Ever hum songs while in the shower? Technically, some lawyer could probably come after you for that if they were really hell bent on it.

While no one's recommending you break laws ... at some point you need to have some perspective. :D It's a band, playing cover tunes at parties. Can you imagine the kind of manpower it would take the artists to enforce the kind of rules you're talking about? Do you have any idea how many parties there are, every evening accross the world, with musicians playing cover songs?

And just how many lawyers are going to be tripping over themselves to take on a lawsuit against some guy who calls himself "Little Studios" for recording the live band playing at cousin David's bar mitzvah ? I mean, it's a good idea to cover your bases and all, but there comes a point where ....
 
Daisy,

First off, I appreciate you helping out and sharing some advice.

Now maybe I'm interpreting what you wrote in your last response incorrectly, but please be certain that I'm not trying to claim or come across as I think I'm so important that a copyright owner is going to assemble their army and come and get me. I'm pretty sure you weren't taking a shot at me. Honestly, I am just some bozo hobbyist. I'm trying to turn a hobby in to something more and I'd like to start by not breaking the law. I also understand that it's absolutely crazy to think that copyright owners are going to put in the effort to catch and press charges against everyone who performs their music. I agree that a line-of-craziness, for lack of better words, needs to be drawn somewhere for which copyright owners can press charges. BTW based on the copyright laws I've read (all of them, took me a while), singing a song in your shower at home does not violate any copyright laws. ;) Granted I'm not a lawyer, so my interpretation of the laws could be wrong.

I'm trying to gain a better understanding of what is legal and what is illegal when it comes to copyright. I highly doubt any copyright owner is going to come after me, but there is the off chance they could. I'm not willing to chance it. You may be willing to chance it and that's fine, but I certainly wouldn't fault anyone for at least attempting to be legal.

That being said, I do appreciate all the answers to my questions that I've been given by the people in this forum.
 
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LittleStudios said:
singing a song in your shower at home does not violate any copyright laws. ;)
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Neither does recording a cover band who's playing live at uncle Joey's wedding.

But someone can still try and press charges if they're rich and bored enough. :D



Now ... just to humor me. Let's pretend that you are in the shower, and suddenly you start belting out the Whitney Houston song "I wanna' Dance with Somebody." Your next-door neighbory happens to have David Geffen staying at his/her place as a guest. He happens to over-hear your croonings, and proclaims: "Who is that? What a voice!"

In a flash, he is at your front door, with a record contract in hand. Your signing bonus is in the millions.

Now, in this scenario, you derived a significant profit from the performance of another artist's song. He/she might now have a case for a cut of your signing bonus. It could happen.
 
In that scenario, I don't know, once again I'm not a lawyer. I would have to try to look at what he's actually paying me for.

I would have to say that if he was paying me for my performance, I would have to say that copyright owner can legally get a cut of the profit.

If he likes my voice and paying me to sign with his label, then that's different. He's paying for my voice, not the performance of that song.

Just the same, this is America, where you can sue someone because hot coffee is TOO hot. So why not.
 
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