CAPS member Mark Quail is a music lawyer working in Toronto. His practice is restricted to music and video game related matters. Mark can be found at www.markquail.com

This article is an extended version of the excellent presentation Mark gave at our meeting on February 19,2006.

If you have ever looked at the contents of a compilation CD and wondered about the process of getting permission to legally sell those recordings, this article will walk you through the basic steps. The focus here will be on Canadian law, except to point out to our American readers that the situation for licensing in the United States is slightly different. The general framework, however, is the same in both countries, in that one must obtain permission from the appropriate rights holder in order to be able use the recordings. The clearance of rights in sound recordings and songs involves getting the permission from the rights owners to be permitted to legally sell the CD compilation to the public. Without permission, one runs the risk of infringing the owner’s copyright and suffering legal penalties.

What rights are we talking about? There are separate copyrights in each of:
1. The Sound Recording
2. The Musical Work
3. The Performer’s "performance" embodied in the Sound Recording
and each of these copyrights may be held by one or more separate entities. The concept of copyright in (a) a record and (b) a song can be somewhat confusing because of the intangible nature of a song and the tangible nature of the sound recording, whatever its format, be it shellac or plastic. Using the example of a "cover" song is often the best way to make clear this distinction: In 1967, "All Along The Watchtower" was written and recorded by Bob Dylan. When Dylan’s records are sold, Dylan’s record company collects the monies and pays Dylan royalties for making that record, as he is the performing artist. Dylan will also get the songwriter royalties associated with that recording because he was the writer of the song. In 1968, Jimi Hendrix recorded the same song. When records containing the Hendrix recording are sold, Hendrix’s record company collects the monies and pays the record royalties to Hendrix’s estate, as he was the performing artist. But in this case, Hendrix does not collect any songwriting royalties because he was not the songwriter. Bob Dylan will collect the songwriter royalties associated with the Hendrix recording.

1. The Sound Recording
Section 24(b) of the Canadian Copyright Act (the "Act") provides that the first owner of the copyright in the sound recording is the "Maker". This is generally a record company but could be any party that paid for the recording to be created. The Maker’s rights will last for 50 years after the end of the calendar year in which the "first fixation" occurred (s 23.(1)(b) of the Act), meaning the time the sound recording was initially made or "fixed" onto some medium such as wax, lacquer or a computer hard drive. Once that period of time has expired, the Maker’s copyright in that work is terminated and that sound recording is said to be in the "public domain". This means that anyone can now make use of that sound recording in Canada without having to pay royalties to the "Maker". For general prudence in trying to determine whether a recording is in the public domain, I often use the date it was released as a starting point on the 50 year term of copyright. However, that term "fixation" raises some interesting questions if the date the recording was made (i.e "fixed" onto tape or wax) preceeded the date it was commercially released to the public by a great length of time. If you can verify with certainty the date the sound recording was actually "fixed" to a medium, then that is the date you use to calculate the life of the Maker’s copyright in that sound recording.

2. The Musical Work
The term "Musical Work" as used in the Act is another name for the "song". The writer of the song is the first owner. The owner has the right to control the mechanical reproduction of the song – this covers everything from the making of vinyl stampers to other processes that form plastics into discs. As song writers would often rather spend their time writing songs and not dealing with the administration needed to reap the monetary benefits of that song, songwriters often assign control of the song’s administration to a music publisher. Generally, Musical Works in Canada are protected for a period commencing from the date they were first made available to the public and ending with the last day of the 50th year after the death of the last remaining songwriter (if there was more than one of them). Note too, that under Canadian law, a music publisher can refuse to issue a mechanical license at their sole discretion. Contrast this with the American situation where, under Section 115 of the U.S. Copyright Act, there is provision for a "compulsory" license, which means that once the song has been released on a record, anyone else can record that song and release records containing the song without the songwriter’s or their music publisher’s permission, as long as they pay the required royalties.

3. The Performer’s "performance" embodied in the Sound Recording
While this is a separate right under the Act, the rights to the performance are usually acquired by a record company in their contracts and this right is then handled in the sound recording license that is issued by the record company. One important note: while a work might be in the public domain after the period of copyright has ended, one must still proceed with some caution depending on the project being created. For example, while the songs and recordings of a certain artist/writer may be in the public domain, the rights to use his or her picture may be protected by the various laws related to "personality" or "rights of privacy" that may still be retained by that artist/writer’s heirs. Therefore, if you were assembling a tribute album to such an artist, there still may be some rights for which permission must still be sought. The laws on this matter vary from province to province and it’s best to consult with local legal counsel on the issue.

How do you determine who owns the rights in the Sound Recording?
There’s no one way to investigate and verify the ownership of a sound recording. Obviously, owners of newer sound recordings are easier to track down, as the ownership information on the record is probably accurate. The internet is proving to be an invaluable tool as a Google search can turn up all sorts of clues. In searching for owners of sound recordings in Canada, one could also contact the Audio-Visual Licensing Agency ("AVLA") as they may represent the record company being sought. As well, for older sound recordings, one might try the Library and Archives Canada. Finally, as a last resort, if you have taken every step reasonably possible and still cannot locate the copyright owner in a sound recording, you can apply to the Copyright Board and ask them to issue a license. For more on this last step, go the Copyright Board’s website

How do you determine who owns the rights in the Musical Work?
As with sound recordings, there is no one way to determine the owner of a song or whether the song is in the public domain. There are a few other helpful websites that can aid an investigation. On top of the information that might be gleaned from the record label and the Library and Archives Canada, there are also the databases maintained by the Canadian Musical Reproduction Rights Agency and those maintained by two of the performing rights societies in the United States (which are good for tracking down music publishers). Find them at www.ascap.com or www.bmi.com. The Canadian public performance rights society, SOCAN, has an excellent member services department available by calling 1-800-30-SOCAN. They may be able to advise whether they represent the music publisher of the song being researched. Again, as above, if all efforts at locating the copyright owner of the song fail, an application can be made to the Copyright Board. Assuming the rights owners have been located, the next step is to request a license from them and to negotiate a fee.

The Costs of Licensing – The Sound Recording (The Master Use License)
For sound recordings that are still under copyright protection, expect to pay between 10 cents and 25 cents per copy to be sold. Whether this rate is on the high end or the low end depends on market conditions; "hit" songs will garner a rate at the higher end. If a sound recording is in the public domain, no royalty is required provided you are using the original recording. If a remastered (or otherwise "cleaned-up") version is used, you’ll have to seek permission from the party that did the remastering. It may be best to remaster and clean-up the original recording yourself.

Rights holders often issue licenses based on an initial expected sale, say, for example 5000 copies and once that amount has been sold, one would pay a further fee for the next 5000 copies (or whatever the anticipated sales figure is) in order to continue commercial exploitation.

The Costs of Licensing – The Musical Work (The Mechanical License)
Technically, the fee payable for mechanical licenses for songs is negotiable, however most licenses are issued at the rates that have been set by negotiation between Canadian Musical Reproduction Rights Agency (CMRRA), on behalf of the majority of music publishers in Canada, and the major record labels. As of the date of this writing, those rates are under review but have been preliminarily set at 7.7 cents for a 5 minute song per unit manufactured, plus 1.54 cents per minute for a song over 5 minutes in length. Whether the license is being issued by the music publisher directly or through the CMRRA, for independent labels it is expected that they will pay the mechanical licensing fees on a "pay-as-you-press" basis, similar to the rollover scenario described for sound recordings.

There are other issues to be covered in the license, such as the duration of the license, the territories involved and the formats in which the compilation can be sold. However, with the space available for this article, not every point can be canvassed. Again, it is usually prudent to consult with local legal counsel experienced in this area of the law and business.

The September-October 2004 issue of "Antique Phonograph News" reported that a copy of "Vecchia Zimarra" (the "Coat Song") sung by Enrico Caruso had been offered on Ebay with an opening bid of $20,000.

This is undoubtedly an interesting and historical recording. Caruso was a tenor and the aria, "Vecchia Zimarra" from the opera La Boheme is for a basso, who sings a song of farewell to his old coat. Here’s one version (in précis) of how Caruso happened to sing this aria, as told by Frances Alda on the reverse side of the Ebay offering:

"During a performance of La Boheme in Philadelphia, Segurola, the basso, who was about to sing the "Coat Song" ("Vecchia Zimarra"), turned to Caruso and whispered "I’ve lost my voice". Caruso replied, "You just stand still and move your lips and I’ll sing it for you". And so, with his back turned to the audience, Caruso sang the aria for Segurola. Segurola then acknowledged the cheers from the audience, who didn’t realize that it was Caruso who had done the singing".

After the performance, Caruso made a recording of the song, and presented copies to those who were involved in the performance. I have heard that only eight copies were made and then the master was destroyed. In the late 1940’s (I think), one of these records was found (now this record would be worth a lot!), and transcriptions were made from that "original" in many forms (78rpm and 33 rpm). The record that was offered on Ebay was the one issued on Victor (#87499 –see the illustrations) with the aria on one side, and the above explanation of why the record was made on the other. The story is introduced by Wally Butterworth and is told by Frances Alda, the soprano who was on stage when Caruso sang the "Coat Song".

This record is reasonably hard to come by, but it doesn’t come under the heading of a great rarity. For example, a past issue of Nauck’s Vintage Records (#36) offered the record with a minimum bid of $25.

The Frances Alda version of what happened that night in Philadelphia is the version that is generally accepted, but Caruso also wrote an account of what happened:

"The poor man (Segurola, the basso) was very apprehensive as the fourth act approached, for he had a celebrated aria to sing, "Vecchia Zimarra". Just before it, I whispered to him, "How are you feeling?" "Pretty bad", he replied. "Give me the coat", I said, "and I’ll sing it for you". To his surprise... I sang it".

This story would indicate that Caruso sang to the coat just as Segurola would have done, in which case the audience would have known who was singing.

So, which version of the story is correct? Personally, I don’t think it matters. The important point is that we are lucky to be able to hear Caruso’s performance of an aria that was written for a basso, even though the recording is a bit of an oddity. But that alone doesn’t make a copy of an "original" record exceedingly valuable!