What license do I need for a live show DVD with cover songs?

April 12, 2011

Dear Music Lawyer,

I’m in a cover band. I know we have to get mechanical licenses for our CDs, but now we want to put together a promotional DVD of our live performances that will accompany the CD or be given away to prospective talent buyers. Will the mechanical licenses for the CDs take care of reproducing cover songs on the DVDs as well? Does it matter that we want to give the DVDs away?

—Aaron

Dear Aaron,

Unfortunately, the mechanical licenses you would obtain for your CDs would not be sufficient for DVDs regardless of whether the DVD is commercially exploited or given away for free. You’ll need another type of license.

While a mechanical license permits you to “cover” a song on your record for a set fee, that only protects your right to make an audio-only reproduction. If you want to pair audio with a visual or graphic of some kind (e.g., your band’s gig footage), you would need to obtain a “synchronization” license (sync license for short). The only exception is if the song is in the public domain.

Like mechanical licenses, sync licenses are obtained from the music publisher(s) of the musical composition. However, unlike mechanical licenses, you cannot simply notify the publisher that you would like a sync license and will pay them a particular fee. There’s no compulsory license provision or rate in the U.S. Copyright Act for sync licenses like there is for certain mechanical licenses. Instead, you must send out a sync license request to each publisher with a description of the intended use and see what fees they quote.

Contrary to popular belief, you will need to obtain a sync license even if you are not going to sell the DVD. If getting a low or gratis sync fee is your goal (isn’t that everyone’s goal?), you would be wise to include in the description of your proposed use that you are not going to sell the DVDs and will use them solely as a promotional tool to book shows or as a bonus with the purchase of a CD (if that’s the case). You may also wish to point the publisher(s) to the mechanical licenses you have obtained for record sales especially if you used something like Harry Fox’s Songfile service and are paying full statutory mechanical royalties for the CD. (Tip: That would be a good reason to obtain the mechanical license prior to requesting a sync license.)

One of the most important (and possibly most frustrating) things to keep in mind is that publishers are not required to grant sync licenses and their failure to respond cannot be taken as a green light to go ahead with using your band’s performance of their copyrighted song(s) on your DVD. In that case, I’m afraid you’re out of luck.

—Amy E. Mitchell