Mechanical Licensing Fees ?

Posted: Tue Sep 11, 2007 7:47 am

How do most of you handle these expenses? If a prospective client asks you to submit a bid for say some location recording that you know will include recording some cover songs, do you include these fees in your estimate?
Let me explain my situation and perhaps the reason I'm asking about this will make more sense. Recently I was asked by a local choir what I might charge to record one of their concerts. They usually record two performances a year and they generally only want enough copies of the performance to allow each member of the choir to have one. (approx 70 members) They are a non-profit organization and receive some funding from a local historical society. In talking to them about the project they were surprised when I mentioned the need for mechanical licensing of any songs they record which are not in the public domain. They thought because they are a non-profit org. they would be exempt from this requirement. Apparently the previous company they had used to record their concerts never mentioned this to them or perhaps if they also did the duplication they just never bothered acquiring licenses?
So how do most of you handle this? Do those of you that include this cost in your bid go the HFA (Harry Fox) route? In this particular case the fact that HFA will only do licenses for a minimum quantity of 250 copies sucks as the customer only wants approx 70. My only thought so far is to suggest to the customer to go ahead and duplicate 250 copies and attempt to sell the extras to re-coup the cost. Your thoughts and suggestions much appreciated. Thanks, Dave

Posted: Tue Sep 11, 2007 8:08 am

There's a few issues here.

First, if each member is to only receive 1 disc, there is a provision in the copyright law which allows you to do so for the purposes of education (to point out mistakes, etc.) and for archival. If they are made available to the public, then yes, you do need to purchase the licenses.

I would not go the route of the HFA since you'll have to license 500 copies (a bit absurd!)

Instead, you'll have to work directly with the publishers. This can be problematic. Several publishers are used to dealing with this and there's a person at the company who does this on a regular basis. Other companies are a giant pain in the butt to deal with. Some can turn your requests around in hours or days, other companies will take months. (I submitted a request to yet another company 3 years ago and have yet to get a response.)

Keep good records of this stuff too! It's very well worth it.

For small batches, I almost always cover these fees for my clients. For larger batches, I either bill it seperately or have them pay for it prior to duplication/replication.

For what it's worth, there are a few larger publishers that you can talk to who will help you along this process. Do you know which publishers you'll have to deal with?

Posted: Tue Sep 11, 2007 9:38 am

Cucco,
Thanks for your response! I remember reading an example of the "one disc" provision but in that case they talked about a teacher making copies of a disc he was using in the classroom so each student could have a copy. In that case the article claimed he would need to aquire licensing to be legal. Are you sure about the provision you mentioned? Another problem I might run into would be in duplication. I am not set up to do duplication (only a masterlink for final mix copy). If I were to use say a major duplication house would they be satisfied with the one copy only for each member?
In regard to what publishers, at this point the choir has not finalized their program for the upcoming concert (Christmas) So I dont know how many songs not in public domain we may be talking about. Has it been your experience that dealing with publishers(owners) isn't really too bad? Where do you start to track down ownership? ASCAP,BMI websites? From what I have read it looks like HFA will do 250 as a minimum number of planned copies and if you only intend to do less you still have to pay for the minimum of 250 Sad

Perhaps a consultation with a music attorney is in my future Smile

Your thought on the one disc per member would be great for this situation if I could confirm that. I want my bid to be competitive and certainly if I have to add in an amount to cover licensing anyone bidding and not including that would blow me out of the water. Thanks, Dave

Posted: Tue Sep 11, 2007 6:19 pm

Lets approach this with the most basic scenario inmind that the publishers will request to represented. That is, recording for profit. IF (a big IFFFF) there is to be no duplication for profit AND the performance is FREE then you have no liabilities to the publisher other than thanks to the songwriter for such a fine song and to the arranger for a fine arrangement. Lets face it, a chorus doing 'Help" isnt going to be the Beatles arrangement by any standards.

Also, there may be songs or arrangements that now fall into public domain. A search of the archives at the copyright office will determine this. Another search of the copyright laws will also determine your situation.

Posted: Wed Sep 12, 2007 7:08 am

DaveDog,
Thanks for your response. Some of the choirs program will probably be in the public domain but many songs will not. I understand where your coming from in regard to the profit thing. Yes in this case such a small local non profit event is not exactly gonna call out the copyright police Smile

However if I am to be honest and include the licensing fee in my bid I am basically screwing myself as it seems much of the competition doesn't worry about it.

Cucco,
Check out "Educational Purposes" on page nine of this link. It would appear that the one copy each for educational purposes doesn't really fly?

http://www.regionsix.org/educ/copyright_info071406.pdf

Thanks, Dave

Posted: Wed Sep 12, 2007 8:26 am

Dave-
Note that the publication you are looking at is about sheet music - not mechanical (recording) rights. [Edit: Oops. He's right. I didn't read it correctly.] I've heard the same thing Jeremy has - that performers can have a recorded copy of their performance for evaluation purposes. But I've not seen it from what I consider a reliable source. (And as much as I admire this forum, I would not consider it a reliable source for legal advice.) If I were doing this as part of a business arrangement I'd either:
1. Put in the contract that obtaining whatever licenses are necessary to distribute the product legally is the clients responsibility and stating clearly that you are not giving advice about what is legal.
2. Get a lawyer who knows music law to advise me if there was an iffy situation and charge the client for passing on that advice (in writing) and obtaining the necessary rights.

Posted: Wed Sep 12, 2007 9:43 am

Thanks Bob ! I probably will follow your suggestion in paragraph #1. In regard to the link to the article, yes the first couple of pages talk about sheet music but on page 7 it is in reference to "performance" licenses and finally on page 8-9 talks about "audio recording" At least that's how I interpret it. Smile

Thanks for commenting. Dave

Posted: Fri Oct 12, 2007 9:07 am

Thank-you for this very informative thread.
I am just starting to hunt all this info down for My first paying client.
Most of this clients songs are gospel covers on open domain, but I want to go through all the motions and gather all the info required for future none open domain cover recordings.

registering with gracenote seems to be more difficult

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