Can you copyright a cover of a song? How? 7 Answers as of May 13, 2015

My band wants to do a cover of a song whose copyright has run out. If our cover has the same lyrics and a very similar melody, will the the cover be our intellectual property? Or because the original song was copyrighted, will we not be able to copyright ours even though their copyright has run out?

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Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
Your question raises a number of issues. First, how do you know the "copyright has run out"? The duration of a copyright is among the most notoriously complicated terms to calculate. This is because the copyright term depends on many variables that have changed with the copyright laws over the years, e.g., who the author is (anonymous, corporation, person), the author's lifespan, whether the work is published or unpublished, where it was published, when it was first published, whether or not it was published with a valid copyright notice, whether the copyright was renewed or not, the country you are in, etc. In the US for a copyrightable work today, the term is life of the author plus 70 years. Back in 1790, the US copyright term was 14 years after publication, with an option for another 14 years. Significant changes to the copyright laws and consequently their terms of duration occurred in 1998, 1978, 1976 and 1909, among others. Second, in order to obtain a valid copyright for a work, such as a song, your work must be "original". Original means that the work must have been developed independently by its author, and there must have been some creativity involved in the creation. This begs the question, what is original about your cover of someone else's song? Thus, it is questionable whether you have any intellectual property in the cover song recording. Obviously, if the original song were still subject to someone's copyright you would have to seek a license from the copyright owner directly or obtain a mechanical license indirectly in order to legally sell and/or distribute your cover song. Assuming that the copyright for the original song really has expired, there should be no need for a license. You would certainly be the owner of such a cover song recording. You might even be able to obtain a copyright registration for your song. This is because there is no substantive review at the Copyright Office of whether or not your work is in fact copyrightable. However, the validity of your copyright (your IP), regardless of the registration, might be called into question (e.g., during litigation) because of the lack of originality of your cover based on someone else's original creative work/song. As always you should consult a Copyright Attorney to fully explore your situation and what you wish to achieve.
Answer Applies to: Utah
Replied: 5/13/2015
Sebby Law Office
Sebby Law Office | Jayne Sebby
The copyright to the score has expired but your cover of the song (assuming it has some unique features and is more than just a rote repeat of another band's version) will begin its copyright protection as soon as you record it. Music is considered to have two types of copyright: one for the original score and one for the individual performance.
Answer Applies to: Nebraska
Replied: 5/13/2015
Microtechnology Law & Analysis | Daniel Flamm
Yes. File an application.
Answer Applies to: California
Replied: 5/13/2015
Webb IP Law Group
Webb IP Law Group | Jason P Webb
You can copyright it as long as you introduce creative elements to it.
Answer Applies to: Utah
Replied: 5/13/2015
Barton Barton & Plotkin
Barton Barton & Plotkin | Maurice Ross
You can copyright a cover of a song. Your cover is called a "derivative work". You can copyright the sound recording of your cover-this is done every day. This is true even if the underlying song is no longer protected by copyright. Note, however, that you need to be very careful when you attempt to ascertain whether the original work is still protected by copyright. There is separate copyright protection for (a) musical compositions, (b) sound recordings, (c) performances, and (d) video recordings. Ordinarily, to make a cover of a song, you need to obtain a mechanical license from the owners of the copyrights in the musical composition (words and music)-who are either the songwriters or their publishers. If the copyright term for the musical composition (words and music) has expired, then you can make a cover without a mechanical license. But be very careful-unless the musical composition was written before 1923, chances are the copyright has not expired. In the event you need a mechanical license, you will probably be able to obtain the license from the Harry Fox Agency. Sometime, however, for songs that are not well-known, the Harry Fox Agency cannot grant the mechanical license, in which event, you have to contact the original song writers, their publishers or their other representatives or heirs. You should have legal counsel investigate whether the musical composition for the song is covered by copyright. Regardless if you need a mechanical license, you can always get a separate copyright registration for your cover.
Answer Applies to: New York
Replied: 5/13/2015
    Law Office of Kirk Buhler
    Law Office of Kirk Buhler | Kirk A Buhler
    Depending upon when the creator of the copyright died, the copyright would be effective. A copyright is for an "artistic expression" While your song may be a derivative you probably used some or your own "artistic expression" in the song. You should be able to obtain a copyright of your own version of the song.
    Answer Applies to: California
    Replied: 5/12/2015
    Banner & Witcoff, Ltd. | Ernie Linek
    How do you know the copyright has run out? Contact the Copyright Clearance Center (www.copyright.com) in Danvers, MA to be sure. Check first.
    Answer Applies to: Massachusetts
    Replied: 5/12/2015
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