When a Cover Song Is Not a Cover Song
**Guest post written by Donna Kay of Donna Kay & The Carousers.
"I love writing lyrics to old instrumental songs. Here’s a link to Wayne Shorter’s song, “Footprints” with my original lyrics. I know most Indie on the Move members aren’t into jazz, but trust me when I say this song is a GIANT. It’s what we jazz cats call a “standard,” which is a fancy term for a cover tune so infamous it’s in almost everyone’s “book” or list of songs. Here’s a link to it.
When I was creating The Carousers live show, I penned introduction lyrics for the band to “Minor Swing,” a song written in 1937 by Django Reinhardt and Stéphane Grappelli. We arranged the song specifically to introduce the band members. I sing about them, they solo over the form, and I move on to the next member. It’s a fan favorite. So, we renamed it and included it on our CD. This is another “classic” in the gypsy jazz genre. You can hear a clip of “Welcome To Our Show” here.
After the time and expense of recording, mixing, designing the cover artwork, and launching the CD, I had two tasks: Copyright the CD, and obtain the licenses to release (for sale) and perform our version of “Minor Swing.”
Excluding the song from the Copyright application was very simple. All I had to do was list the party who owns the rights to the excluded song and mark it “excluded from application.” The 1937 song is not public domain. There are almost no songs in existence that someone doesn’t own the rights to. There are firms set up specifically to buy catalogs of old music in order to retain the copyrights and collect royalties forever. It is what is, and jazz musicians have endured this for decades. Through a simple copyright search, I found the owners of the copyright and excluded the song from my application.
Next, I needed to go to Harry Fox or Easy Song and pay my “cover song fee” to make sure the proper persons were credited and paid for our version of the song. As I went through the Easy Song on-line application process, I stopped dead in my tracks when I read this language:
If you have changed lyrics or written lyrics to a song that otherwise has no lyrics, you are not releasing a cover. You are releasing a “derivative work.”
More digging and FAQ reading informed me that this meant I had to obtain two permissions to use the song: One from the owner of the publishing rights, and after submitting their permission in writing, the Easy Song standard licensing fee to record and perform our version of the song. This took a full month of digging, e-mailing, getting responses and finally finding two brothers in NYC who run a publishing company and own the rights the song.
By this point, my CD had already been released to the world. I e-mailed the publishing company in NYC. They got back to me quickly and requested the lyrics. I guess they didn’t want me singing about sacrificing babies or killing cops to Grappelli and Reinhardt’s music. After I sent them the lyrics? No response, and I have not pressed the issue. My band, after all, is pretty unknown and under-the-radar.
So why bother? Two reasons:
First is, after I obtain these permissions, I can copyright The Carousers’ arrangement of “Welcome To Our Show.” Then, I can begin to collect my own royalties instead of paying an office in NYC.
Second, working with professional musicians has taught me that I should always take my music seriously and be compliant with the rules, no matter how crazy they may seem. I also learned to always be ready to “be that well known.” Operating with the mindset that no one will ever notice what you’re up to sets you up to never get noticed.
Fast forward a couple of months, and still no word. The attorney said that I have done my “due diligence” and the worst thing that can happen is that we pull the tune from future pressings of the CD. We’re pressing in limited quantities for now. We can, however, continue to play the song live, as the venues cover any licensing fees for ASCAP/BMI memberships. We did not put the full song on any of our social media platforms or web site, and we only feature a “clip” on CD Baby. So, if we do receive a cease and desist order, we’ll have the minimum “un-doing” to take care of. We’re just now starting to play more than 100 miles from our home base, so we’re still a pretty small-time outfit. We honestly don’t expect any legal problems, as the song doesn’t really translate to radio play. It was crafted for the live show.
I believe I have lost the taste for putting lyrics to other people’s music. Release the cover, but save yourself the headache of the derivative work.
P.S. I would love to sit down with Weird Al Yankovic and discuss this, right? "
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