Covering a cover version of a public domain song

[bdht909]

What is the name of your state (only U.S. law)? South Carolina

Hello. I am interested in recording the classic Led Zeppelin version of the old blues song "When the Levee Breaks." The original is a 1929 recording in the public domain and the musical structure of the Zeppelin version is a bit different. It is legal to record their version of the song? Thanks for any advice you can give me.

 

[TheGeekess]

What is the name of your state (only U.S. law)? South Carolina

Hello. I am interested in recording the classic Led Zeppelin version of the old blues song "When the Levee Breaks." The original is a 1929 recording in the public domain and the musical structure of the Zeppelin version is a bit different. It is legal to record their version of the song? Thanks for any advice you can give me.

Get permission from Led Zep, and then you can record their version of 'When the Levee Breaks'.

 

[quincy]

What is the name of your state (only U.S. law)? South Carolina

Hello. I am interested in recording the classic Led Zeppelin version of the old blues song "When the Levee Breaks." The original is a 1929 recording in the public domain and the musical structure of the Zeppelin version is a bit different. It is legal to record their version of the song? Thanks for any advice you can give me.

All that is in the public domain is the original version of "When the Levee Breaks." Led Zeppelin's version is copyright-protected and requires licensing to use.

There are two types of copyrights for music - one for the sound recording (the way the music is arranged) and one for the musical work (the song and composition). The musical work, which is generally owned by the songwriter/publisher, might not need to be licensed (you will have to check this) but the rights in the sound recording is probably held by the record company and you will need a license.

Making your own original version of the song is something to consider, too.

 

[FlyingRon]

There are actually more than two...

The right to record the underlying song yourself, commonly called mechanical rights, is the first. Typically these are held by the publisher. Obviously for a PD song with no additional copyrightable derivation, this doesn't exist. Even if it does, there's a thing called COMPULSORY LICENSE which says that if this was ever published as a record in the US, that you can buy the rights for yourself for a nominal fee. For most of the mainstream industry, this is handled by a group called The Harry Fox Agency.

The second as alluded to, was the right to use an actual prior recording. This is commonly called MASTER RIGHTS. Again the record company usually manages this, you'll need to contact them.

Third, to perform the work (either live or by public playing of the recording, let's say on radio), you need PERFORMANCE RIGHTS. These are handled by PERFORMANCE RIGHTS ORGANIZATIONS which include the famous ones of ASCAP and BMI. The venue or the TV/RADIO station typically negotiates these licenses.

There are other rights that apply to other situations. To use the music in a stage production or to back a TV show (other than a straight performance) or video game you need synchronization rights.

There are companies that specialize in getting the rights lined up for what you want called "music clearance" houses.

 

[quincy]

There are actually more than two...

The right to record the underlying song yourself, commonly called mechanical rights, is the first. Typically these are held by the publisher. Obviously for a PD song with no additional copyrightable derivation, this doesn't exist. Even if it does, there's a thing called COMPULSORY LICENSE which says that if this was ever published as a record in the US, that you can buy the rights for yourself for a nominal fee. For most of the mainstream industry, this is handled by a group called The Harry Fox Agency.

The second as alluded to, was the right to use an actual prior recording. This is commonly called MASTER RIGHTS. Again the record company usually manages this, you'll need to contact them.

Third, to perform the work (either live or by public playing of the recording, let's say on radio), you need PERFORMANCE RIGHTS. These are handled by PERFORMANCE RIGHTS ORGANIZATIONS which include the famous ones of ASCAP and BMI. The venue or the TV/RADIO station typically negotiates these licenses.

There are other rights that apply to other situations. To use the music in a stage production or to back a TV show (other than a straight performance) or video game you need synchronization rights.

There are companies that specialize in getting the rights lined up for what you want called "music clearance" houses.

Nice post, FR. You were much more thorough than I was.

Here are applicable links to BMI, ASCAP and Harry Fox -

for permission for musical performances: http://www.bmi.com and http://www.ascap.com
for permission to reproduce songs: http://www.harryfox.com

 

[Dave1952]

I believe that the OP plans to play in a band. He wants to do a Led-like version of this song. Led Zep does not have the rights to this song other than the rights to their recordings. The OP may play this song since it's in the public domain. Copying the arrangements of Bonham, Page, et c. are ok because while the lyrics and melody (not owned by Zep) are protected by copyright, the arrangements (done by Zep) are not protected by copyright.
He may rock out.

 

[quincy]

I believe that the OP plans to play in a band. He wants to do a Led-like version of this song. Led Zep does not have the rights to this song other than the rights to their recordings. The OP may play this song since it's in the public domain. Copying the arrangements of Bonham, Page, et c. are ok because while the lyrics and melody (not owned by Zep) are protected by copyright, the arrangements (done by Zep) are not protected by copyright.
He may rock out.

bdht909 said he was interested in recording the song.

The additions made by Led Zeppelin to the public domain "When the Levee Breaks" are copyright-protected.

 

[Dave1952]

Yes, he did say he will record his band playing this song. The song is in the public domain so he may do this. I did listen to some early recordings and the Zep version. The Zep version struck me as not protected by copyright. It's essentially the same song as the earlier versions. Quincy, what strikes you as copyrightable?
It should be pointed out to the OP that asking for permission may be far cheaper than defending a suit

 

[quincy]

First, a derivative is a work based on preexisting material, where enough new creative and original material has been added to make the resulting work eligible for copyright protection. Making derivatives is one of the exclusive rights held by a copyright holder so if someone wants to base a new work on the original, they will (generally) need to get permission from the copyright holder to do this.

With a public domain work, however, anyone is free to use the original work, so no permission is needed from the copyright holder. Any derivatives made of the public domain work, however, will have elements that can be protected under the copyright law. To use a derivative of a public domain work would require permission of the copyright holder. An example of a derivative of a public domain work would be Ted Turner's colorized versions of public domain black-and-white films. The black-and-white films can be used by anyone but the colorized versions are copyright-protected and would require permission from Turner.

The original blues version of "When the Levee Breaks" as written by Memphis Minnie is in the public domain. Led Zeppelin took the original version of the public domain song and changed the lyrics a bit and changed the tempo or cadence of the music. They added the drums and harmonica. The derivative created by Led Zeppelin of the original Memphis Minnie version, with its original and creative elements added to the original, is copyright-protected. To use the Zeppelin version, licensing is required.

There are numerous licensed covers of the Zeppelin version by various and assorted artists which might make it seem that the Zeppelin version is the original Memphis Minnie version, but it isn't. The Memphis Minnie version with its lyrics and music can be used by anyone. Zeppelin's version requires licensing (a mechanical - or compulsory - license and, for performance rights, a synchronization license).

Asking for permission from the copyright holder is a relatively painless process. Defending against a lawsuit is not.

 

[Dave1952]

Led Zep recorded their version in 1970 but Memphis Minnie died in 1976 (Kansas Joe died in 1950). It was not public domain when Zep recorded. Not sure why the OP believes that this song is public domain, now. Originally I assumed that the OP was correct. I suppose they could have let it lapse but I doubt that
I understand derivative work, I think. The copyright covers melody and lyrics so the instrument arrangements backing the vocalist aren't copyrightable. Zep did write a bridge (melody and lyrics) for this song so a claim of derivative work might work but I'm underwhelmed by this claim. Still, Zep aggressively defends it's business interests so the OP should look into the various licensing arrangements for both the original and the derivative.

Interesting topic. I enjoyed poking around on the web for this.

 

[justalayman]

Led Zep recorded their version in 1970 but Memphis Minnie died in 1976 (Kansas Joe died in 1950). It was not public domain when Zep recorded. Not sure why the OP believes that this song is public domain, now. Originally I assumed that the OP was correct. I suppose they could have let it lapse but I doubt that
I understand derivative work, I think. The copyright covers melody and lyrics so the instrument arrangements backing the vocalist aren't copyrightable. Zep did write a bridge (melody and lyrics) for this song so a claim of derivative work might work but I'm underwhelmed by this claim. Still, Zep aggressively defends it's business interests so the OP should look into the various licensing arrangements for both the original and the derivative.

Interesting topic. I enjoyed poking around on the web for this.

see here for the duration of copyright protections:


http://www.copyright.gov/circs/circ15a.pdf

 

[quincy]

Led Zep recorded their version in 1970 but Memphis Minnie died in 1976 (Kansas Joe died in 1950). It was not public domain when Zep recorded. Not sure why the OP believes that this song is public domain, now. Originally I assumed that the OP was correct. I suppose they could have let it lapse but I doubt that
I understand derivative work, I think. The copyright covers melody and lyrics so the instrument arrangements backing the vocalist aren't copyrightable. Zep did write a bridge (melody and lyrics) for this song so a claim of derivative work might work but I'm underwhelmed by this claim. Still, Zep aggressively defends it's business interests so the OP should look into the various licensing arrangements for both the original and the derivative.

Interesting topic. I enjoyed poking around on the web for this.

The Memphis Minnie/Kansas Joe original "When the Levee Breaks" was published in 1928 and the copyright was NOT renewed. The original has been in the public domain since 1958.

Led Zeppelin's version of the song IS copyrighted (it is a derivative of the public domain song, with original elements added) and permission IS needed to use the Zeppelin version of the song.

 

[ecmst12]

IF OP were to record a version of the song, and the Led Zep team heard it and thought it infringed on their copyright, they would sue (with their considerable resources) and it would be up to OP's band (with their most likely meager resources) to defend against the suit (possibly using the arguments which Dave has mentioned here). Their defense might even have merit. BUT, 1000 to 1 odds that it would cost OP's band FAR more than they are ever likely to earn from the song to defend such a lawsuit. Quincy is recommending a conservative approach by getting permission first or not using Zep's song at all; I think this is wise considering the potential costs of a lawsuit.

 

[quincy]

IF OP were to record a version of the song, and the Led Zep team heard it and thought it infringed on their copyright, they would sue (with their considerable resources) and it would be up to OP's band (with their most likely meager resources) to defend against the suit (possibly using the arguments which Dave has mentioned here). Their defense might even have merit. BUT, 1000 to 1 odds that it would cost OP's band FAR more than they are ever likely to earn from the song to defend such a lawsuit. Quincy is recommending a conservative approach by getting permission first or not using Zep's song at all; I think this is wise considering the potential costs of a lawsuit.

Well, I am not recommending the conservative approach as much as I am recommending the legal approach.

To use Led Zeppelin's version of the Memphis Minnie song would be infringing on Led Zeppelin's registered copyright.

Derivatives of public domain works, as I noted earlier, are copyrightable - the creative and original elements added to the public domain work have protection under the law. Led Zeppelin has registered their version with the US Copyright Office. Other derivatives of the song by other artists have been registered, as well.

Only the original version of "When the Levee Breaks" (with its original lyrics and music) is available for anyone to use without licensing.

The use of Led Zeppelin's version of the song could cost the infringer up to $150,000 per infringement (although between $750 and $30,000 per infringement would be more likely).