Def Leppard and their record company, Universal, have once again proved that musicians and music labels go together like oil and water. Unlike some bands, however, the English heavy metal rock band might just escape their record company troubles thanks to a quirk in copyright law.
Background
Universal is the long-time exclusive distributor of Def Leppard’s record catalogue. And, importantly, Universal owns the copyright in Def Leppard’s commercially released recordings. But Def Leppard’s original 1979 recording contract with Universal made no provision for digital production of the band’s songs. And the contract prohibited Universal from doing anything with the band’s music without the prior consent of the band.
So when the band and Universal tried to negotiate the share of royalties the band would receive from the digital release of their recordings, things ground to a halt. In the words of frontman Joe Elliot, “we just sent them a letter saying, ‘No matter what you want, you are going to get “no” as an answer, so don’t ask.’
Playing a copyright ace, Def Leppard went back to the drawing board and came up with a strategy that stumped the record company …. How?
‘Def Leppard’ © 2009 Nick Ares, used under a Creative Commons Attribution-ShareAlike license
The US Regime for Recording Cover Songs
US copyright law provides a compulsory licence regime which allows someone to distribute a new recording of a musical composition (ie a cover recording) without the consent of the original songwriter or copyright owner in the music and lyrics. All the covering artist needs to do is give the copyright owner notice and pay a set royalty.
So Def Leppard decided to give notice to the owners of copyright in their songs, re-record their entire back-catalogue and digitally release them as “covers” (and, of course, pay a set royalty). In doing so, the band ingeniously undermined Universal’s ability, as copyright owner in the original recordings, to negotiate a royalty for Def Leppard’s hits in the digital space.
Def Leppard has set about re-recording a swag of their most popular songs in their catalogue to be released online as ‘covers’ and then, as copyright owners of the new ‘covers’ Def Leppard will be able to control their digital distribution.
It seems like a lot of effort to receive a better royalty on digital sales, right? Well, Def Leppard do have a devoted following. In fact, the band has sold over 100 million records worldwide, and was once ranked 31st in VH1’s “100 Greatest Artists of Hard Rock”. There is also likely to be some extra paydirt in the fact that the soundtrack to Tom Cruise’s new film, Rock of Ages, features two Def Leppard covers.
The Australian Regime
Interestingly, Australia also has a regime for recording cover songs without the need for the individual consent of the songwriter (or the copyright owner in the music and lyrics). Part III, Division 6 of the Copyright Act allows someone to record a cover song without the consent of the songwriter or copyright owner of the lyrics or music so long as:
- a recording of the song has already been made in, or imported into, Australia* at least one month before the cover will be offered for sale;
- the person recording the cover version gives notice to the copyright owner; and
- the person recording the cover version pays a set royalty. The Act provides for the royalty amount to be agreed between the parties but, if no agreement is reached, this will be set at 6.25% of the retail selling price of the record.
Additionally, in Australia, the Australasian Mechanical Copyrights Owners Society Limited (AMCOS), which collects and distributes royalties for the reproduction of its members’ songs, has a blanket Audio Manufacture Licence Agreement (AMLA) which, if agreed to by the cover artist, provides for a royalty of only 6.0%.
So, theoretically, a band that has already released recordings of its songs commercially in Australia could do a similar thing as Def Leppard.
The moral of the story
As Elliot says, “It’s fair enough we all signed a deal with the devil when we signed to some corporate label when we were teenagers and stuff, but you learn as you go along.” It also helps to have a good copyright lawyer.
* Or another country that is a member of the Berne and Universal Copyright Conventions.
By Peter Carstairs and Owen Webb
