WWW FAQs: How can I legally play my own cover of a song on my website?

2007-04-12: You have recorded your own version of an existing song - in other words, a cover version. And you want to play your version on your website.

But is it legal? And if not, how can you make it legal?

First, let's break it down a bit and understand the two major possibilities:

1. You want to stream the song on your site. That is, you want the song to play, but not be permanently saved on the user's computer. This is called "streaming." To do this, you need a performance license, so named because it refers to the right to perform the song for an audience.

2. You want to allow the user to download the song and keep it permanently, usually by downloading an MP3 file and then burning it to a CD or adding it to their iTunes library. This is called a "download." To do this, you need a mechanical license, so named because it originally referred to the right to physically manufacture an LP record, cassette tape or CD.

"But I want to play the original band's recording..."

This article concerns how to legitimately play your own covers of existing songs on your website. If you want to play the original version of a song, see my article how do I get the rights to play copyrighted music on my web site?

"Hang on, I just want to sing karaoke on the Internet!"

If you want to perform karaoke online and hear performances by other people without worrying about all this legal baloney, try ksolo.com Online Karaoke or Sims On Stage Online Karaoke. These sites allow you to easily record a karaoke performance and upload it to the site. You can listen to other people's performances, they can listen to yours, and the legal and financial stuff has already been taken care of. Uploading your own personal karaoke recordings to your own web site requires complicated legal steps as described in this article, so I recommend using one of these sites instead if you just want to have fun.

Sure, it's a pain... but hey, nobody's stopping you from writing your own songs!

Streaming: How To Get A Performance License

You want to stream your covers on your website. And you're willing to do what it takes to make sure the original songwriters are compensated. But how do you go about it?

There are three major organizations that handle the right to perform a composition (song) in public (and yes, that includes playing it on the radio, Internet or otherwise). Nearly all popular musicians are a members of one of the big three: ASCAP, SESAC, and BMI.

Unfortunately, you must figure out which bands belong to which of these organizations and keep track of how many hours of music were sent out for each of the three. This can be a challenge, but the responsibility is yours. That's life in the big city.

Is This Song Licensed With ASCAP, SESAC, or BMI?

Good question. Here's how you find out!

1. Do you have the CD? Good! Look at the sleeve. This information shouldn't be hard to find in the fine print. This is the surest way to find it.

2. Try ASCAP's title search page. I recommend searching for the song title. Try spelling variations and search by artist if that doesn't work.

3. Search BMI's repertoire database (use the form on the right-hand side of the page). Again, I recommend searching for the song title first.

4. Check SESAC's repertoire search page.

If you can't find the song in any of the three databases, look again at the CD sleeve and liner notes! You'll likely find that BMI, SESAC or ASCAP is mentioned.

Still have no idea who licenses the song? Then I recommend you contact the band's management directly (often not difficult to do via their website). Ask them whether their compositions are licensed through BMI, SESAC, or ASCAP and be sure they tell you which one! If they are not a member of any of these organizations, ask who you should talk to for a performance license. You may be able to negotiate directly with the musicians or their management.

Example: I searched all three databases for OK Go's Here It Goes Again. I found it in BMI's database, which states that the song is licensed via BMI. A search for "OK Go" failed, but a search for "Here It Goes Again" was successful.

How Do I Pay ASCAP, SESAC and BMI?

OK, by this point you should have a list of all of the songs you intend to play. And you should know whether each song is licensed with ASCAP, SESAC, or BMI. Now you're ready to obtain a license from each of the three organizations.
If none of the songs you want to play are licensed through SESAC, then you don't need a license from SESAC. The same applies to the other two organizations. Just remember that you must do the search again for every new cover tune you add to your site.
Now that you know how each song is licensed, you're ready to obtain a license from each of the three organizations and start paying them according to their license terms... which, unfortunately, involve minimum fees. These are not outrageous but they may be steep enough to be unrealistic for amateurs.

Obtaining a BMI Performance License

Like ASCAP and SESAC, BMI offers licensing for Internet use of their compositions. Unlike ASCAP and SESAC, BMI offers an online licensing account center to help you find the license you need. BMI offers a convenient interactive questionaire to arrive at the correct license for you.

BMI's licensing is substantially simpler and more affordable than the other two. The minimum fee, currently $295 as of this writing, is all you will owe if your annual revenue is under $15,000. If your revenue exceeds $15,000 you still have very reasonable options with BMI, and recordkeeping is also much simpler. These terms are excellent and BMI should be applauded for making the process far less painful. In fact, I recommend the use of BMI music on your website (with the appropriate license, of course).

Although BMI does not currently base its rates on the exact number of music listening sessions that took place, you will still be contacted by BMI and required to report the music listening activity on your website, including both the songs that were offered and how often they were downloaded. So good recordkeeping is essential. But since BMI's rates are not session-based, you should be able to meet these recordkeeping requirements by analyzing your website's log files... provided you keep them, that is. However, if you have built a sophisticated, database-driven music delivery system that makes it impossible to figure out which songs were listened to by looking at the server logs, make sure you build a recordkeeping system directly into your database.

I do have one complaint with BMI: you won't find a link to account.bmi.com on www.bmi.com's main licensing page! Instead you are encouraged to send email... to an address that never responded to me when I previously wrote about this subject.

Why wasn't this information more readily available on BMI's home page? Who knows! Fortunately, the brilliant singer-songwriter Jonathan Coulton knew about account.bmi.com. And when I spotted his hilarious easy-listening cover of "Baby Got Back," I realized he was the man to ask. Many thanks Jonathan Coulton for his insights into the Internet cover-song licensing process.

Obtaining an ASCAP Performance License

You can obtain an ASCAP license for an Internet radio station from ASCAP's Internet Music License Agreements page.

Actually, there are two types of licenses offered. The difference in price is not great, so it's worth understanding what is permitted by each.

The Non-Interactive License: "Radio" Only

ASCAP's non-interactive license covers websites that function much like a radio station, in that the user can't decide what songs to listen to when, and there is no pre-announced list of songs to be played and when. The minimum annual fee for the "non-interactive" license is $288, as of this writing.

The Interactive License: Music On Demand

Sites that allow users to listen to what they want, when they want, will need to choose ASCAP's "Interactive License." The Interactive license has a minimum fee of $340, as of this writing, and higher rates as well. Otherwise it is quite similar to the non-interactive license, with a similar choice of rate schedules.

The Big Catch: Paying For Music That Isn't Theirs

As of this writing, ASCAP offers a choice of three rate schedules. The first one appears to be the most attractive, with the lowest rates. But read carefully! All three schedules calculate your rate based on your website's revenue, and again based on music listening sessions, with the larger of the two being the amount you owe. But under schedule A, you owe even if the revenue or music listening did not involve ASCAP music in any way!

And under schedule C, you pay only based on revenue or music listening that does relate to ASCAP artists... but the rates are much higher.

Read the fine print and choose carefully!

Recordkeeping Requirements

Notice that the ASCAP licenses require you to keep track of your music listeners and send in regular reports. Good recordkeeping is an absolute requirement.

Whose job is it to figure out that a set of songs were listened to by the same person over a 35-minute period, meaning that only one "session" was involved by ASCAP's definition (as of this writing)? It's your job. And you need to be able to document that and back it up. I suggest handling this by requiring the use of session cookies and refusing access to users whose browsers fail to accept them, bouncing them back to a "please turn on cookies in your browser" page until they turn them on. Then you can safely avoid paying 10 times for 10 song plays that were, in reality, all by the same person in the same hour. PHP is a great tool for this. With PHP you can easily log the start of each song playback to a database along with a session ID.

For more information, see my article how do I keep track of user sessions?

Performance Licensing for SESAC Compositions

Like ASCAP, SESAC offers a standard Internet licensing agreement. You can find that license here. As of this writing, you'll pay a minimum of $101, twice a year. In addition, as of this writing you'll pay $.000604 per "aggregate tuning-hour," or ATH (an hour of listening for a single user). You will pay more if your website offers multiple "components" such as streaming, podcasting and downloading.
Paying for downloads as a "component" through SESAC does not mean you have paid for the mechanical rights. You must do that separately if you are offering permanent downloads!

Note that if 100 users listen to the same stream for an hour, that comes to 100 Aggregate Tuning-Hours.

This web page is not the definitive source of royalty rates for any of these organizations! Read the actual agreements! I accept no responsibility for your failure to do so!

Selling Downloads: How To Get A Mechanical License

If all you want to do is let people stream the music from your site, listening only while they are on your site, then you're done. But what if you want to allow users to download permanent copies of songs?

In this case, you need a different type of license: a mechanical license. The mechanical license gives you the right to reproduce the song in a permanent form such as a vinyl LP, compact disc or digital download.

Statutory Licensing: As Long As You Pay, You're Okay

It's possible to negotiate directly with a record label or individual artist. But thanks to a convenient federal law, you don't have to do that.

In the United States, anyone who wishes to sell a copy of a cover song can do so... as long as they locate the party that owns the rights to the song and pay them a license fee established by federal law. As of this writing, this rate is 9.1 cents per copy for songs under five minutes, and slightly more for longer songs.

The catch is that you must identify the song publisher (not the record label, and usually not the individual artist) and send them payment directly. You must also meet certain reporting requirements.

You also have the option of working through the Harry Fox Agency. The Harry Fox Agency essentially serves as a middleman, simplifying this process for you but also requiring a small filing fee (in the neighborhood of $15). Paying via the Harry Fox Agency is not mandatory but you may find it more practical.

cdbaby.net offers an excellent article covering the situation in detail, so I won't duplicate it here.

"But I want to give away my downloads!"

Don't. The 9.1 cent royalty applies whether your downloads are free or not. Remember, the composition doesn't belong to you. If you want the freedom to give away song downloads, write your own songs.

Conclusion

While legitimately offering cover songs on your website isn't easy, it is within the reach of individual professional musicans and serious amateurs. I strongly encourage you to follow the law and ensure that the original artists are compensated for their work.

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