This would be considered a derivative work?

[Juno60]

Hello to all.

If I make a licensed cover of a sung song with those characteristics:

- The main voice will be replaced with a synthesizer, but the melody line will be the same.
- 1:1 copy of the song (chords, rhythms and other elements).
- All the instruments of the track will be synthesized with FM synthesis.

would be considered a derivative work?.

Regards.

[planetearth]

Are you looking to copyright it or just to make a cover for your own personal use?

Technically, it would be a derivative work, but if you're not looking to make any money from it, you might not want to worry too much about the "red tape". If you are looking to copyright it, you'll want to get the original copyright owner's permission first, if possible. (You can still make a cover for commercial use without the original copyright owner's permission, but it's a lot more difficult and expensive to do.)

Of course, if it's in the public domain, you don't have to worry about the songwriter's copyright, though there are other copyrights you might need to worry about.

Steve

[Juno60]

Are you looking to copyright it or just to make a cover for your own personal use?

Technically, it would be a derivative work, but if you're not looking to make any money from it, you might not want to worry too much about the "red tape". If you are looking to copyright it, you'll want to get the original copyright owner's permission first, if possible. (You can still make a cover for commercial use without the original copyright owner's permission, but it's a lot more difficult and expensive to do.)

Of course, if it's in the public domain, you don't have to worry about the songwriter's copyright, though there are other copyrights you might need to worry about.

Steve

Hello, thanks for the response.

My intention was to get a mechanical license from HFA and then the cover would be released through a digital distributor.

Under of you point of view, what can be done from my part to fall under the cover category?.

[planetearth]

Well, you're making a cover. By definition, since you're recording a song someone else has recorded (and presumably, released), then you're making a cover. If you're not looking to copyright the song as an additional songwriter, and if you're not making significant changes to the melody or chord structure, I'm not sure this would be considered a "derivative work", however.

Generally speaking, a "derivative work" is a work...well, derived from another. (Erm, yeah--sorry about that. ) It's usually based upon another work, not a 1:1 copy. Since there are some changes introduced in a derivative work, a new copyright is in order, so the new lyrics, chord changes or melody can be credited to the new writer(s). An interesting (and topical) example of this would be Steve Perry's "cover" of George Harrison's "I Need You". Steve changed enough of the song that he is now a co-writer, along with George. (Who wouldn't love that?!) Steve also got George's widow Olivia's "permission"--and blessing--on his version of the song (though technically, he didn't need either). So while some people may call it a "cover", it's technically a derivative work, one in which Steve got a songwriting credit.

Where your situation gets interesting is that yours isn't a 1:1 copy, exactly, however. You're actually removing the lyrics, but nothing else from the original song--not the original recording, if I understand you correctly. Basically, you're taking the overall structure of the song (again, not the recording), and reproducing it almost exactly the same way as it was composed and written...minus the lyrics.

Do you have permission from the songwriter or original publisher, or are you just going straight to the mechanical license? And did someone from the Harry Fox Agency--or, preferably, an IP rights/copyright lawyer--explain how the accounting and royalties work if you don't have permission from the original songwriter or publisher? (Again, you can cover a tune this way, and there's nothing legally wrong with that. It's just considered more of a pain to deal with, generally speaking.)

Steve

[Juno60]

Well, you're making a cover. By definition, since you're recording a song someone else has recorded (and presumably, released), then you're making a cover. If you're not looking to copyright the song as an additional songwriter, and if you're not making significant changes to the melody or chord structure, I'm not sure this would be considered a "derivative work", however.

On this case, my plan is to do a cover of another song (but not identifying myself as the original songwriter), there will not be any improvisation or new notes... For example, think on "Every Breath You Take" entirely done in FM; all the notes of the bass, strings, guitars are the same, but instead using real instruments, I will use FM patches.

Where your situation gets interesting is that yours isn't a 1:1 copy, exactly, however. You're actually removing the lyrics, but nothing else from the original song--not the original recording, if I understand you correctly. Basically, you're taking the overall structure of the song (again, not the recording), and reproducing it almost exactly the same way as it was composed and written...minus the lyrics.

So, that's mean that for to be considered a cover, I have to hire a singer to do the vocal part, and besides that, I have to pay to the original lyrics writer separately? I mean, I didn't know that the cover license of HFA didn't include the rights for the lyrics.

Do you have permission from the songwriter or original publisher, or are you just going straight to the mechanical license? And did someone from the Harry Fox Agency--or, preferably, an IP rights/copyright lawyer--explain how the accounting and royalties work if you don't have permission from the original songwriter or publisher? (Again, you can cover a tune this way, and there's nothing legally wrong with that. It's just considered more of a pain to deal with, generally speaking.)

My intention was to acquire the HFA license, because I though that if I did a 1:1 copy of the notes, the cover will be legal, but now I have doubts.

[lfm]

I saw a pie chart over how royalties from a CD is distributed.
- music composer
- lyrics writer/composer
- producer
- arranger
- lead instrument, often vocals
- musicians involved

something like that. So certain percentages divided on each part.

From this is seems fair that somebody making a cover of a song - can make claims for producer, arranger and musicians and usually own vocals. Composers always get their part.

I remember even Madonna asked Björn&Benny(Abba) for permission of her version of their song(don't remember which one). I think it were twisted a bit too.

And looking a jazz versions of well known songs, it's even hard to distinguish the theme in there somewhere. Still original composers get their part.

So that "derivative" work should claim any composer stuff - seems a bit off. Seems like a jazz version pretty much.

[planetearth]

On this case, my plan is to do a cover of another song (but not identifying myself as the original songwriter), there will not be any improvisation or new notes... For example, think on "Every Breath You Take" entirely done in FM; all the notes of the bass, strings, guitars are the same, but instead using real instruments, I will use FM patches.

Just to clarify, you wouldn't be considered an "original songwriter", but if this work is derivative enough, you would be considered a new co-writer. Whether you want to "identify yourself" as such doesn't really matter here; you can use a pseudonym if you wish, but this is part of the way you'd collect royalties. Again however, this is only for derivative works. For a cover, you'd get no co-writing credit.

Whether this is truly a derivative work depends upon whether removing parts of the song (such as the lyrics) would make it "derivative" enough to warrant a new copyright of the song. It doesn't sound like it; it sounds as if you're just doing a cover. Still, you should check with a copyright lawyer to be sure.

So, that's mean that for to be considered a cover, I have to hire a singer to do the vocal part, and besides that, I have to pay to the original lyrics writer separately? I mean, I didn't know that the cover license of HFA didn't include the rights for the lyrics.

No, for it to be a cover, you certainly could just do an "instrumental version" of the song, and that sounds like exactly what you're going for here. So again, I don't think you're making a derivative work. I think you're just making a cover. But without knowing exactly what your plans are (outside of what you've laid out here), I can't say with 100% certainty.

My intention was to acquire the HFA license, because I though that if I did a 1:1 copy of the notes, the cover will be legal, but now I have doubts.

Yes, if you did a 1:1 copy (minus the lyrics, and using FM synths in place of the instruments used on the original recording), you'd be making a cover. (This doesn't necessarily contradict what I said in the previous statement.)

Without wanting to muddy the waters more, and with all due respect to the Harry Fox Agency, you don't want to use them--or anyone on KVR--as your sole source of legal advice for this issue. The HFA is more of a "rights clearinghouse"; they don't necessarily look out for your best interest until it's time to collect royalties. Negotiating the rights and/or contacting any necessary copyright holders before a recording is made is beyond the scope of what HFA has done traditionally.

A copyright attorney will help you understand the difference between the copyright on a song and the copyright on a recording--and which one it is you need to get here. An agent will try to get you the best license deal possible for the song or the recording (or both) so that you don't have to pay more than necessary for the rights to copy the song (or recording). And since you're paying royalties whether or not your version of the song makes any money at all, you'll want the best deal you can get. A copyright attorney may do what an agent does in this situation, but unless s/he's done a lot of these deals, I'd be wary.

I know some of this isn't entirely helpful, but when you're dealing with copyright law, no one is really trying to help you, as it turns out. No one buy your agent--and even s/he is suspect. A copyright attorney will (usually) get a flat fee for answering your questions. Whoever negotiates the actual deal on your behalf usually gets a percentage of that deal, so it's in that person's best interest to get the best deal possible for you.

It sounds like what you're trying to do here is make a fairly standard instrumental cover of a song. You're not making a derivative work. And as I said at the beginning, the best way to go about making this cover would be to get the rights (permission) from the copyright holder of the song. You don't have to do this, and it sounds as if you don't plan to do this, but due to the complexities of accounting for sales of copies of your version of the song (and how much you have to pay for mechanical royalties), it would be considerably easier and (quite probably, much) cheaper if you did.

Steve

[Juno60]

On this case, my plan is to do a cover of another song (but not identifying myself as the original songwriter), there will not be any improvisation or new notes... For example, think on "Every Breath You Take" entirely done in FM; all the notes of the bass, strings, guitars are the same, but instead using real instruments, I will use FM patches.

Just to clarify, you wouldn't be considered an "original songwriter", but if this work is derivative enough, you would be considered a new co-writer. Whether you want to "identify yourself" as such doesn't really matter here; you can use a pseudonym if you wish, but this is part of the way you'd collect royalties. Again however, this is only for derivative works. For a cover, you'd get no co-writing credit.

Whether this is truly a derivative work depends upon whether removing parts of the song (such as the lyrics) would make it "derivative" enough to warrant a new copyright of the song. It doesn't sound like it; it sounds as if you're just doing a cover. Still, you should check with a copyright lawyer to be sure.

So, that's mean that for to be considered a cover, I have to hire a singer to do the vocal part, and besides that, I have to pay to the original lyrics writer separately? I mean, I didn't know that the cover license of HFA didn't include the rights for the lyrics.

No, for it to be a cover, you certainly could just do an "instrumental version" of the song, and that sounds like exactly what you're going for here. So again, I don't think you're making a derivative work. I think you're just making a cover. But without knowing exactly what your plans are (outside of what you've laid out here), I can't say with 100% certainty.

My intention was to acquire the HFA license, because I though that if I did a 1:1 copy of the notes, the cover will be legal, but now I have doubts.

Yes, if you did a 1:1 copy (minus the lyrics, and using FM synths in place of the instruments used on the original recording), you'd be making a cover. (This doesn't necessarily contradict what I said in the previous statement.)

Without wanting to muddy the waters more, and with all due respect to the Harry Fox Agency, you don't want to use them--or anyone on KVR--as your sole source of legal advice for this issue. The HFA is more of a "rights clearinghouse"; they don't necessarily look out for your best interest until it's time to collect royalties. Negotiating the rights and/or contacting any necessary copyright holders before a recording is made is beyond the scope of what HFA has done traditionally.

A copyright attorney will help you understand the difference between the copyright on a song and the copyright on a recording--and which one it is you need to get here. An agent will try to get you the best license deal possible for the song or the recording (or both) so that you don't have to pay more than necessary for the rights to copy the song (or recording). And since you're paying royalties whether or not your version of the song makes any money at all, you'll want the best deal you can get. A copyright attorney may do what an agent does in this situation, but unless s/he's done a lot of these deals, I'd be wary.

I know some of this isn't entirely helpful, but when you're dealing with copyright law, no one is really trying to help you, as it turns out. No one buy your agent--and even s/he is suspect. A copyright attorney will (usually) get a flat fee for answering your questions. Whoever negotiates the actual deal on your behalf usually gets a percentage of that deal, so it's in that person's best interest to get the best deal possible for you.

It sounds like what you're trying to do here is make a fairly standard instrumental cover of a song. You're not making a derivative work. And as I said at the beginning, the best way to go about making this cover would be to get the rights (permission) from the copyright holder of the song. You don't have to do this, and it sounds as if you don't plan to do this, but due to the complexities of accounting for sales of copies of your version of the song (and how much you have to pay for mechanical royalties), it would be considerably easier and (quite probably, much) cheaper if you did.

Steve

Thanks for all the info, I appreciate it. By other hand, I followed your advice and I've sent a message to a specialized lawyer to ask for the price of the service.

Regards and many thanks for your time.

[planetearth]

That’s great! I’d be interested in hearing what you find out about this.

One more thing to consider: you might not want to go with the first copyright attorney you find. As with any other type of attorney, you’ll find varying rates and levels of expertise. You don’t necessarily have to spend $300 an hour. You might find a great, knowledgeable attorney for $60 an hour. At any rate, I don’t think you’ll spend more than an hour discussing this project with any attorney you find.

Good luck!

Steve

[aMUSEd]

What happens when someone covers a song but also adds a bit (say another verse) and then changes the name to make it look like a new song?

[planetearth]

That person gets sued. See: Zeppelin, Led.

Steve

[Juno60]

That’s great! I’d be interested in hearing what you find out about this.

One more thing to consider: you might not want to go with the first copyright attorney you find. As with any other type of attorney, you’ll find varying rates and levels of expertise. You don’t necessarily have to spend $300 an hour. You might find a great, knowledgeable attorney for $60 an hour. At any rate, I don’t think you’ll spend more than an hour discussing this project with any attorney you find.

Good luck!

Steve

Ok, I will post here again when I know something.

Regards.

[aMUSEd]

That person gets sued. See: Zeppelin, Led.

Steve

I don't think they took whole songs though. I'm thinking more of Stephen Marley's 'You're Gonna leave' which takes most of Martina Toply Bird's 'Sandpaper Kisses' but adds a few more lines to change the context (basically it makes it from the man's perspective). However she is credited (but at the end of a list with himself as the first author) so is that OK? It does make it look like it's his song now.

[jancivil]

heh

[planetearth]

Actually, Zeppelin did take entire songs, such as “Boogie With Stu” from Physical Graffiti (As well as other tunes from that and other Zeppelin albums). Zep even gave Richie Valens’ widow a writing credit on their version of what is basically Valens’ “Ooh My Head”, because she didn’t get any royalties after Valens was killed, apparently. For other songs, they sometimes didn’t credit the original writer at all, even though the song(s) had been around for years.

And while I was making a joke (more or less) with my first answer earlier, the Marley tune would be a derivative work. He’d get a writing credit, as you’ve noted. While he’d officially be listed as an “additional” writer on the copyright registration, whoever wrote out the credits you’ve seen may have just wanted it to appear Marley did more—or they may not have known he should have been listed after the original writer. Even on the Zeppelin tunes where Zeppelin at least credits the original writer(s), they sometimes put that writer’s name last. I don’t think there’s anything legally wrong with that, but I also don’t think it fools—or impresses—anyone.

Steve