Licensing A Melodic Quote

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leigh
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Licensing A Melodic Quote

Post by leigh »

I am using a piece of the melody of part of Mile's "So What" solo in a composition of mine that I'm going to be putting on CD. Sony/BMG is the copyright holder and I have the contact info for their licensing department but I don't know what, precisely, to request. I don't think it would be a mechanical license because I'm only using 32 bars of melody, not the whole song. And it's not a sample because it's being played by mandolin and violin.

Can someone tell me the legal term for what I need to ask for?

Thanks!

**Leigh
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Kubi

Re: Licensing A Melodic Quote

Post by Kubi »

Not a lawyer, but I'd say you need a license for a derivative work. Definitely from the publisher, who may or may not have to refer back to Miles' estate, depending on what the deal was between Miles and the publisher regarding allowing others to derive new works from the published material.

The label definitely has no say here, since you're not using any part of the actual recording.

I'd get a lawyer with experience in music matters to help you. Everything (including whether or not you get a license at all) is up for negotiation, there are no standards in this case. Good luck!
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mikehalloran
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Re: Licensing A Melodic Quote

Post by mikehalloran »

License from the publisher is required unless you are willing to pay the statutory fee for the song with full credit and then you do a compulsory license. If imposing a compulsory license, you do not need permission from the publisher but you do need to pay the maximum royalty.

The Copyright office has a flyer on this.
http://www.copyright.gov/circs/circ73.pdf

You would credit as follows:

YourSong/So What
Your Name, Miles Davis
© 2009, 19xx Your publishing, Miles's publisher

Here is the compulsory rates from copyright.gov:

The statutory mechanical royalty rate for physical recordings (such as CDs) and permanent digital downloads is:

9.10 Cents for songs 5 minutes or less
or
1.75 Cents per minute or fraction thereof over 5 minutes.

For example:
5:01 to 6:00 = $.105 (6 x $.0175 = $.105)
6:01 to 7:00 = $.1225 (7 x $.0175 = $.1225)
7:01 to 8:00 = $.14 (8 x $.0175 = $.14)

You would send a check for the full amount due via certified mail with a letter imposing a Compulsory License per the instructions found on copyright.gov.

Note - and this is important: You must pay the maximum for the whole song per the formula if over 5 minutes, not 9.1 cents for the 32 bars. For any other royalty split other than 100%, you must have permission from the publisher, who is likely to say 'no' unless there is enough money involved for you to approach them through an entertainment lawyer.

The exception is if the Miles quote comes at the beginning or the end - in that case, you would pay the 9.1 cents only unless you stretch 32 bars beyond 5 minutes.

BTW, you do not have permission to put words to Miles' tune without permission from the publisher. Period.

Anything anyone posts on this topic should be treated as well meaning advice only. When in doubt, get advice from a lawyer.

You can find the publisher info from http://www.ascap.com/ace or http://www.bmi.com depending on Miles Davis' affiliation. You send the certified letter and check directly to the publisher or to the Harry Fox Agency. HFA also has ways of letting you do this online but you need to pay their processing fees - a check to the publisher avoids those.
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zoot
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Re: Licensing A Melodic Quote

Post by zoot »

I have been recording just about everything since 1958 and some of my favorite stuff comes from groups of friends jamming freely. I would love to include some of these pieces on a c d but there could be up to 20 short one phrase quotes each. Just the leg work is stifling and the fees.... What do you think? Give up?
zoot
Kubi

Re: Licensing A Melodic Quote

Post by Kubi »

Careful re. the compulsory license - you can only do that if it's really a cover. You can not do it if it's a derivative work, which in the OP's example is far more applicable (he's not recording his version of "So What", he's using part of it in a new work that has nothing to do with "So What".) For that you always need the permission of the copyright holder. There are exceptions (i.e. parody) but be ready to defend them in court...

Here's the pertinent passage from the PDF from the US Copyright Office that Mike posted above:

Can a New Arrangement of the Copyrighted Musical Work Be Made for the Recording?

Yes. The compulsory license includes the privilege of making a musical arrangement of the work “to the extent necessary to conform it to the style or manner of interpretation of the performance involved.” However, section 115 also provides that the arrangement “shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work ... except with the express consent of the copyright owner.”


Needless to say, if you use only a piece of Miles' solo in a new work, you have indeed "changed the basic melody and fundamental character" of "So What", and can thus not simply use a compulsory license. You need express permission from the copyright holder.

Agreed with Mike that you need to get a lawyer if you're actually going to do any of this.
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leigh
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Re: Licensing A Melodic Quote

Post by leigh »

Kubi wrote:Careful re. the compulsory license - you can only do that if it's really a cover. You can not do it if it's a derivative work, which in the OP's example is far more applicable (he's not recording his version of "So What", he's using part of it in a new work that has nothing to do with "So What".) For that you always need the permission of the copyright holder. There are exceptions (i.e. parody) but be ready to defend them in court...
This is exactly what my attorney said and because I was on a release deadline I ended up releasing the piece without the intro which was the derivative work. In addition to the large part from "So What", the ostinato is the first four notes of "Seven Steps To Heaven". Here it is:

http://leighdaniels.com/pub/Six_Steps_T ... _Intro.mp3

**Leigh
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zoot
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Re: Licensing A Melodic Quote

Post by zoot »

I want to include some parts of jam sessions in a c d i wish to put out. some quotes naturally come up, usually one line or faze of a tune or symphonic work but i can't tell what the limitations are. hate to scrap some really fun stuff because one 32 bar section may have 20 different quotes. every combination of notes have been used so do we have to do hours of research finding who to pay every time we use notes.
zoot
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