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Clearance for clients recording cover songs

 
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crandallwarren
gettin' sounds


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PostPosted: Wed Oct 22, 2014 1:14 pm    Post subject: Clearance for clients recording cover songs Reply with quote

Hey Y'all,

I recently recorded a festival, with lots of acts. I'm noticing as I'm going back through the show that there are a large amount of cover songs throughout. The organization who put on the event is a longstanding, well known one-- so I have no doubt that they will be clearing the songs before releasing the record.

But I was just curious, am I subject to any personal liability in this situation-- being the one recording and mixing them? Am I required to verify the clearance of these songs to protect myself?

Thanks very much!

C.
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Last edited by crandallwarren on Wed Oct 22, 2014 1:56 pm; edited 1 time in total
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Snarl 12/8
ghost haunting audio students


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PostPosted: Wed Oct 22, 2014 1:43 pm    Post subject: Re: Clearance for clients recording cover songs Reply with quote

That's might not be advice you want to get off the internet.
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crandallwarren
gettin' sounds


Joined: 06 Jun 2011
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PostPosted: Wed Oct 22, 2014 1:44 pm    Post subject: Re: Clearance for clients recording cover songs Reply with quote

haha. Word. Just wondering if other people have been in the same situation and what their workflow has been?
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joninc
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PostPosted: Wed Oct 22, 2014 2:19 pm    Post subject: Re: Clearance for clients recording cover songs Reply with quote

People can record covers all day long and there is no problem until
You decide to sell them in which case you need to compensate the song owners
so I don't see how you are liable in any way unless you are selling them.
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JWL
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PostPosted: Wed Oct 22, 2014 5:12 pm    Post subject: Re: Clearance for clients recording cover songs Reply with quote

joninc wrote:
I don't see how you are liable in any way unless you are selling them.


This, though IANAL. This is an important detail, since such things are decided amongst the lawyerly.
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lyman
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PostPosted: Thu Oct 23, 2014 9:35 am    Post subject: Re: Clearance for clients recording cover songs Reply with quote

JWL wrote:
joninc wrote:
I don't see how you are liable in any way unless you are selling them.


This, though IANAL. This is an important detail, since such things are decided amongst the lawyerly.


I though maybe Apple was now making adult gifts when I first read this.
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vvv
zen recordist


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PostPosted: Thu Oct 23, 2014 9:50 am    Post subject: Re: Clearance for clients recording cover songs Reply with quote

JWL wrote:
joninc wrote:
I don't see how you are liable in any way unless you are selling them.


This, though IANAL. This is an important detail, since such things are decided amongst the lawyerly.


Very true, and as an example, it's not necessary to "sell" something (in the traditional sense of the word "sell") to infringe on property rights.

Think back to the Reagan campaign's use of "Born in the USA" ...

Or even the sound-a-like lawsuits, such as the recent ones brought by the Black Keys (whom Jack White seems to think cop his schtick), or the WWE, etc.

You as the mere recordist may be pretty safe from liability for infringment assuming that all you did was document, but that doesn't mean you couldn't be sued, just prob'ly not successfully.

The above is observational and not meant to be legal advice in any form. Twisted Evil
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DrummerMan
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PostPosted: Thu Oct 23, 2014 1:07 pm    Post subject: Re: Clearance for clients recording cover songs Reply with quote

lyman wrote:
JWL wrote:
joninc wrote:
I don't see how you are liable in any way unless you are selling them.


This, though IANAL. This is an important detail, since such things are decided amongst the lawyerly.


I though maybe Apple was now making adult gifts when I first read this.


Very Happy Best thing on the internet today! Very Happy
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Geoff Mann
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JWL
deaf.


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PostPosted: Thu Oct 23, 2014 4:01 pm    Post subject: Re: Clearance for clients recording cover songs Reply with quote

DrummerMan wrote:
lyman wrote:
JWL wrote:
joninc wrote:
I don't see how you are liable in any way unless you are selling them.


This, though IANAL. This is an important detail, since such things are decided amongst the lawyerly.


I though maybe Apple was now making adult gifts when I first read this.


Very Happy Best thing on the internet today! Very Happy


Awesome. Yet another market for Apple to recreate and rule.
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Gregg Juke
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PostPosted: Fri Oct 24, 2014 1:34 am    Post subject: Re: Clearance for clients recording cover songs Reply with quote

Back to the original question ( Rolling Eyes ), I know a lot of studios are using indemnity clauses regarding cover songs in their contracts/paperwork these days, so it might be helpful for you to get a few of these just as an FYI (probably a bunch you can download here on the old Internet). But I also think that's a bit of a grape-shot/extreme CYOA legal perspective, as it's unlikely that as an engineer working for an established label/entity, you'd be singled-out for a lawsuit. But just in case, you may want to CYOA.

And no, I am not an attorney and the above is not to be considered "legal advice."

GJ
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DrummerMan
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PostPosted: Fri Oct 24, 2014 11:35 am    Post subject: Re: Clearance for clients recording cover songs Reply with quote

Just out of curiosity, can anyone show an example of an engineer being sued for having been just a documentary part (meaning just the engineer) of any kind of copyright infringement, whether its in a studio or live setting, be it doing covers that don't have permission or songs that rip off previous songs?

I know this has come up in various places before, and we all want to cover our asses even if there isnt a precedent, but I can only remember artists, producers and venues being the targets of these kinds if lawsuits.

But I'd love to know if I'm wrong about that.


I mean, I can see the possibility for it. The engineer who uses their time an skill matching the cowbell sound on blurred lines with the Marvin Gaye track is part of what makes the groove so similar, that being the main argument. I just haven't seen engineers' names come up in these situations, unless they're just not "important" enough to mention in the article.
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Geoff Mann
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vvv
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PostPosted: Fri Oct 24, 2014 1:29 pm    Post subject: Re: Clearance for clients recording cover songs Reply with quote

DrummerMan wrote:
The engineer who uses their time an skill matching the cowbell sound on blurred lines with the Marvin Gaye track is part of what makes the groove so similar, that being the main argument. I just haven't seen engineers' names come up in these situations, unless they're just not "important" enough to mention in the article.


Actually, in the OP's scenario, I think the "main argument" would be as to whether they knowingly participated in a scheme to deprive the proper property owner of their rights, whatever the mechanics of the recording.

I have also not heard of any particular engineer being sued, and any involvement in such a suit was probably not in an individual capacity but rather as an employee, in that most such suits seem to either involve publicity, or substantial money (ex., television or other commercial use) or politics. In those instances, the engineer would not be the publicity or "pocket" target.

Bottom line, then, in my inexperienced head, would be concern that if as well as being the engineer there was substantial money being made or some other agenda present, and as long as the engineer was not also the promoter, etc., there seems little practical risk.

And certainly incorporation and/or business insurance would go a long way there for protection, absent some "intentional" act.

But again, the above is observational and not meant to be legal advice in any form; just shootin' the shite, like. And if the OP does see some reason for concern, by all means, getta lawyer! Twisted Evil
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DrummerMan
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PostPosted: Fri Oct 24, 2014 7:46 pm    Post subject: Re: Clearance for clients recording cover songs Reply with quote

My guess would be that the festival is responsible for making sure PROs are paid for the possibility of cover tunes being played/performed. I'm not sure if it's a blanket payment like cafe's and restaurants are supposed to pay to ASCAP, BMI and the like, or if they need to keep track of the songs and pay per. As a performer, I've both been in situations where each tune performed had to be submitted for this reason (though it was in Finland), and where we were told ahead of time that only original material was allowed to be performed.

After that, the next responsibility would be for whoever owns the masters of the recordings (your client, I suppose) to register those cover songs with Harry Fox and pay those appropriate fees before distributing them in any way, paid or not.


Since you are neither the festival producer nor the owner of the masters, the burden of those payments and consequences of ignoring them shouldn't be on your shoulders. I don't know if you sign a contract before doing such types of jobs (not a bad idea though) but in the future you could always throw in an indemnity clause specifically stating that those things aren't your responsibility. I'd be really surprised though if you were held accountable in any way.








but then again....



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Geoff Mann
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jimjazzdad
ass engineer


Joined: 19 Jan 2012
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PostPosted: Sat Oct 25, 2014 7:22 am    Post subject: Re: Clearance for clients recording cover songs Reply with quote

DrummerMan wrote:
My guess would be that the festival is responsible for making sure PROs are paid for the possibility of cover tunes being played/performed. I'm not sure if it's a blanket payment like cafe's and restaurants are supposed to pay to ASCAP, BMI and the like, or if they need to keep track of the songs and pay per. As a performer, I've both been in situations where each tune performed had to be submitted for this reason (though it was in Finland), and where we were told ahead of time that only original material was allowed to be performed. After that, the next responsibility would be for whoever owns the masters of the recordings (your client, I suppose) to register those cover songs with Harry Fox and pay those appropriate fees before distributing them in any way, paid or not. Since you are neither the festival producer nor the owner of the masters, the burden of those payments and consequences of ignoring them shouldn't be on your shoulders. I don't know if you sign a contract before doing such types of jobs (not a bad idea though) but in the future you could always throw in an indemnity clause specifically stating that those things aren't your responsibility. I'd be really surprised though if you were held accountable in any way. but then again....


That sounds exactly right (but I'm not a lawyer and we're not as litigatious up here in The Great White North). When my daughter recorded a CD of jazz covers, I learned more than I ever wanted to know about copyright, performance and neighboring rights, and mechanical rights. Mechanical rights are what dictate you pay the copyright owner(s) of the song - typically the composer and/or lyricist - and its is based on the number of pressings/CDs/downloads...It is the responsibility of the artist or the label to make the payment and get clearance. This is usually through Harry Fox in the US, CMRAA in Canada, although in some cases it may be necessary to go right to the copyright holder. If a cover song is performed, or even played from a recording, in public then the ASCAP (or in Canada, SOCAN) fee applies, hence the license that bars, cafes, etc purchase. Bottom line: the creator always (hopefully?) gets paid. The engineer is considered neither creator nor artist in the copyright wars... Rolling Eyes
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Nick Sevilla
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PostPosted: Thu Oct 30, 2014 12:27 am    Post subject: Re: Clearance for clients recording cover songs Reply with quote

DrummerMan wrote:
Just out of curiosity, can anyone show an example of an engineer being sued for having been just a documentary part (meaning just the engineer) of any kind of copyright infringement, whether its in a studio or live setting, be it doing covers that don't have permission or songs that rip off previous songs


Nope. because you are not profiting from the actual music. You are providing an ancillary service.

Cheers
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