Dear Rich: I saw your post about changed song lyrics and I had a question which takes a step in a different direction.
I have sung lots of songs with my young son about diggers, one of his obsessions. They are set to popular tunes,
with the lyrics all or mostly changed.
I think it would make a good book for children. Would my lyrics changes be considered a parody, like Weird Al Yankovic, and thus be free to be printed? Or because I am not recording or performing these songs would these songs be exempt?
Most of the tunes I am using are from before 1922, traditional children's tunes like Twinkle Twinkle Little Star which changes into Twinkle Twinkle Little Truck (... How I wonder if you're stuck etc)
However I have several songs that are after 1922, for example -- "The Digger Game" (Digger Digger Bo Bigger, Banana Fanna Fo Figger... set to the tune of The Name Game) or "You Say Excavator, I Say Digger" (set to the tune of Let's Call The Whole Thing Off). If you do not have time to answer, would you recommend a lawyer? Do intellectual property lawyers exist in every city? We noticed that you live in Canada so we'll preface this by explaining that our answer is based on U.S. copyright law which is fairly similar to Canadian law, but not exactly. For example, Canada does not have fair use, it has "fair dealing," a slightly more restrictive concept that does not excuse parodies. Not that we're sure that your lyrics are parodies (some argue that a parody of a song makes fun of the underlying subject matter), and in any case not all such parodies are okay under fair use principles (Weird Al Yankovic pays for the right to rewrite the lyrics -- this article provides more details). Your book. Just so we're clear ... you plan to offer a book with new "digger lyrics" for existing songs. For example, you would state, "Sing these lyrics to Twinkle Twinkle Little Star" and then include your new lyrics but not the musical notation or original lyrics, right? You are definitely okay to do so with any songs published in the U.S. before 1923 or any that otherwise fall into the public domain for other reasons. We think you'll be okay with non-public domain songs, too, but we can't guarantee safe passage. That's because lyrics are separately copyrightable and if you're borrowing too much from the originals, you would create an infringing derivative. That said, we kind of doubt that the copyright owners are going to care enough to do something about this project so we're inclined to think you can proceed as planned. Do intellectual property lawyers exist in every city? Probably, check one of the many Canadian legal directories (type "canada legal directory" into your search engine).
Dear Rich: I'm curious how I can copyright a song where I used an existing song and while I changed most of the words I did not change the music. The meaning is entirely different but I'm sure I can't legally record the song without consequences. Based on your web article "How to Obtain Sample Clearance" it sounds like there is no chance for me to legally sell my version of the song if the copyright owner or artist/songwriter doesn't grant permission. The chances of me making a lot of money are slim but I'm happy to pay some type of royalty or percentage of revenue in the event it is successful. Sometimes there's gold in those changed lyrics. When Ken Darby changed the lyrics to Aura Lee (a public domain song), the result -- Love Me Tender -- became a monster hit for Elvis Presley. If you're wondering why that song is credited to Presley and Vera Matson, Darby's wife, that's because Presley demanded co-writing credit for many songs he recorded regardless of whether he actually wrote them. When asked why Darby credited his wife instead of himself, he supposedly replied, "Because she didn't write it either." Right, you had a question. You asked how you can copyright a pre-existing song whose lyrics you have modified. We suppose you could file a Form CO, claim authorship of the lyrics and then, in section 4 (Limitation of Copyright), state that you are not claiming any copyright to the pre-existing material (name the song and provide its copyright registration number). Doing that won't really gain much for you because you still can't perform or record the song without the permission of the underlying song owners. So, we'd recommend scratching that strategy. How can you record the modified song without being sued? We think that's the real question you're asking. Under copyright law, you need to seek permission from the song owner to record it if you materially alter the song. We doubt whether a publisher is going to grant permission to modify lyrics to a song, although it's always possible. (By the way, none of this has anything to do with sample clearance.) Of course, if you hadn't materially altered the lyrics, you wouldn't need to ask for permission, you could simply pay a fee to a service such as Songfile (Harry Fox) or Limelight, and obtain a compulsory license. Knowing this, some musicians use a halfway measure -- they pay for the compulsory license and use their modified version of the song. Even though that doesn't meet the standards of copyright law, the thinking is that by paying for the license, the musician demonstrates good faith and hopefully, the song owner won't care to hassle those who pay for licenses.
Dear Rich: We decided to take the compulsory license route for seven songs on our fourth album. We were comfortable with the idea of paying monthly royalties to seven music publishers, because we only made 150 CDs and we thought the monthly task probably wouldn't last too long. We also thought it would minimize some of our initial costs in making and releasing a new album. However one music publisher sent us a letter stating that since we chose the compulsory license route, we must furnish an annual statement certified by a CPA; otherwise, we "would be in default with respect to the Compulsory License guidelines." I knew that an annual statement needed to be furnished, but I didn't know it had to be certified by a CPA. We phoned and e-mailed the other six music corporations and asked if they wanted an annual statement certified by a CPA, and all six were very nice and told us they didn't want the CPA certification and that the monthly statements were enough. We started conversations with the CPA who does my business partner's taxes, but he didn't want to take any risk of signing his name on a piece of paper that confirmed the number of CDs we sold in 2011 matched the amount of royalties we paid to Bourne. I spent about ten hours preparing clear instructions and documentation (receipts, evidence, etc.) that prove we only made 150 CDs in 2011, sold 71 in 2011, and have 79 remaining, but the CPA was only willing to sign his name if the language on the annual statement said he can't provide any assurance or guarantee that our payments and inventory are correct. To us, this seemed ridiculous, especially since we agreed to sign a waiver of liability. Do you happen to know of a CPA who speaks our language and who can probably certify our simple annual statement? Sorry about the agony (or "ag" as the young people say). Considering that the total sum at issue appears to be $6.46 (9.1 cents per song per pressing x 71 copies = $6.46), we think there's got to be a simple solution. What happens if you don't include a CPA statement? Congress (in 17 U.S.C. Sec. 115) empowered the Register of Copyrights to create CPA regulations (found at 37 CFR 201.19,) for compulsory licensing accounting. (And yes, Annual Accountings under compulsory licenses must be accompanied by the CPA's statement, shown way at the bottom of this blog entry). Sec. 115 (6) provides that:
"If the copyright owner does not receive the monthly payment
and the monthly and annual statements of account when due, the
owner may give written notice to the licensee that, unless the
default is remedied within thirty days from the date of the
notice, the compulsory license will be automatically terminated.
Such termination renders either the making or the distribution,
or both, of all phonorecords for which the royalty has not been
paid, actionable as acts of infringement ... "
So, if we assume that failing to include a CPA notice places you in default, you would only be liable for any future sales (after receiving a notice of default). So perhaps an easy solution would be to pay off the remaining 79 CDs ($7.19). Once the publisher cashes that check (and assuming you don't press any more CDs), it appears that the CPA issue would be moot. Alternatively, if you don't want to pay it off and you want to continue pressing and selling the cover song, you could send a letter to the publisher explaining the situation and furnishing all of the documentation asking them to please release you from the onerous CPA requirement. What's up with your CPA? We're lawyers so we can relate to the CYA mentality exhibited by the CPA. Standard accounting practices for small labels are fairly simple and easy to review and confirm. If you used a duplication service that can confirm 150 pressed CDs, and 79 CDs remain in inventory, it should be relatively easy for the CPA to confirm your accounting and to fulfill the requirements established in the statement, below. (As for your question, sorry, we don't know any CPAs.) CPA statement that must be included. If you do manage to obtain a CPA's cooperation, the CPA must furnish the following statement:
"We have examined the attached “Annual Statement of Account Under Compulsory License For Making and Distributing Phonorecords” for the fiscal year ended (date) of (name of the compulsory licensee) applicable to phonorecords embodying (title or titles of nondramatic musical works embodied in phonorecords made under the compulsory license) made under the provisions of section 115 of title 17 of the United States Code, as amended by Pub. L. 94-553, and applicable regulations of the United States Copyright Office. Our examination was made in accordance with generally accepted auditing standards and accordingly, included tests of the accounting records and such other auditing procedures as we considered necessary in the circumstances."
Dear Rich: Do we need permission by the original author/creator of a song to sell/distribute a song cover, or is it simply enough to credit the original creators on the release? What are the basics of licensing/clearing a cover song? Speaking of covers, we recently stumbled on Willie Nelson's version of The Warmth of the Sun. We wondered if this video was around when Willie was having his tax problems, because if it was, we don't see why the judge didn't dismiss all charges and grant Willie sovereign immunity. P.S. The song has a different meaning when you learn it was written the night that JFK died. Right, you had a question. Check out our response to a similar question last September. And if you're still having trouble sleeping, check out all our other responses dealing with covers and compulsory licensing. (Type "compulsory license" or "cover song" into the "Search Dear Rich" box on the right.) Also, our book, Getting Permission, explains the procedures in detail.
