If you are a songwriter with work that’s been commercially recorded and released, you may eventually receive or may have already received a Notice of Intent (NOI) letter stating that a third party wants to record or distribute your composition.
They’re sending you the NOI because United States Copyright law states they must obtain a mechanical license from the rights holder in order to distribute the recording. Sending the NOI letter is all that’s required to obtain a compulsory mechanical license.
By sending the letter and agreeing to pay the statutory royalty rate set by Congress - currently 9.1 cents - the composition can be re-recorded or distributed without the writer or publisher’s approval. Artists can use the compulsory license to record another writer’s song and as a songwriter you will receive notice when someone wants to cover one of your songs. The only stipulation is that the original songwriter must be notified and compensated according to the statute.
The Mechanical Rights Copyright Loophole
It’s important to note that the Copyright Office only requires that artists and distributors make good faith efforts to locate and pay songwriters mechanical rights to any cover works they distribute. It does not require them to take any extraordinary measures to find the writer beyond sending out the NOI to whomever it believes to be the owner of the mechanical rights.
Problems arise when the potential distributor only searches for the songwriter in the files at the US Copyright Office where not every songwriter is registered. Searching for the rights owners in the records of the digital service itself, in the files of the services licensing agent, with the PROs, or after a simple search is far more effective, but some distributors don’t take the time. A loophole in the statute requires distributors look for songwriters, but does not require they find them.
If a rights holder can’t be located, a notice is filed with the Copyright Office stating the owner can’t be found. To date, various entities have filed more than one million “address unknown” forms with the Copyright Office releasing distributors from the obligation to pay mechanical royalties.
Locating Mechanical Rights
You may already know that every song has two types of copyright. There is the copyright on the “master” or sound recording (captured on tape or a hard drive) and the copyright in the written music and lyrics. The compulsory license seeks only the mechanical rights to the composition, and does not grant sync rights (using music along with video) or any other rights. Streaming services such as Spotify or Apple need to license both master and composition copyrights to offer a song for sale or download, and an additional sync license is required in order to use a song/recording in a video uploaded to YouTube or elsewhere.
Your PRO (publishing rights organization such as ASCAP, BMI or SESAC) handles performance rights but they do not handle mechanical rights. Those are handled mainly by the Harry Fox Agency (HFA) in the US, but there are other mechanical rights organizations in the US and internationally as well. Whenever a song you write is recorded and sold in either a physical or digital format you are entitled to a mechanical royalty. Music supervisors and music clearance specialists typically go to HFA first to find the writer of a work, so registering with them makes it easier for companies to find you and pay you.
If a song is registered with HFA, the rights-holder can be easily located but not every distributor takes the time to search for them there. Additionally, there are many songwriters who are not affiliated with HFA and need to be located and contacted directly which can be a difficult and time consuming process that doesn’t always lead to finding the right composer.
Don't Let The System Get You Down
In an article written for Forbes, attorney Erin M. Jacobson said, “Songwriters and publishers should not have to work this hard to get paid or have their life’s work properly licensed, and companies should not be allowed to build businesses—much less billion-dollar businesses—on the concept of ‘infringe now and ask questions later.’”
Working with a publishing administrator like Songtrust is the smartest way to cope with issues related to your mechanical rights. Songtrust will register your songs with HFA as well as international mechanical collection agents worldwide. Once you’re registered, we will be able to obtain all the proper mechanical licenses for cover versions of your songs, so you can focus on what you do best.
Disclaimer: This article is US law-based and doesn’t articulate international regulations. Reach out to firstname.lastname@example.org if you have any questions.
To make sure you’re collecting all of your mechanical and performance royalties globally, register for Songtrust as your publishing administrator today!