By Cindy Ellen Russell, Star-Bulletin
"...with more attention (to local music) comes people discovering
that someone recorded their song and didn't get a mechanical license
-- and it isn't difficult to comply," says attorney Mark Bernstein.

Popularity of isle music
brings legal notes to fore

By John Berger
Special to the Star-Bulletin

IN the old days, "the story was the thing," Hawaii folk troubadour Gordon Freitas says. "If you had a story to tell you put it to whatever melody you thought fit and that was it."

Folk tradition here and on the mainland also held it acceptable to add verses or change lyrics of popular songs.

Times have changed. Music is big business, and recording artists have learned that you pay now to play popular songs, or risk getting caught and paying a fine later.

For a long time, Hawaii musicians were sheltered from this. Local records weren't distributed much outside the state. The only way a violator was likely to be caught was if a representative of a national record company or music publisher visited Hawaii, stumbled across a local remake of a hit song, and decided to prosecute.

That's changed in the past decade. Growing numbers of local artists and local record labels have national distribution. A small but growing number have been signed by national record companies. Local recordings are heard on the Internet and on mainland radio stations. Hawaii artists now appear on the Billboard World Music chart.

"The increased visibility of local artists on the world charts and the increased visibility of the local record business is going to bring more attention and with more attention comes people discovering that someone recorded their song and didn't get a mechanical license -- and it isn't difficult to comply," said attorney Mark Bernstein.

(The term "mechanical license" dates from when music duplication primarily involved the manufacture of music rolls for player pianos.)

If caught, the penalty can be stiff. One song used without permission can result in a penalty of up to $100,000.

Other penalties, Bernstein said, may result in taking the offending record off the market, assessment of statutory damages and punitive damages and delivery of profits to the copyright holder, plus payment of all attorney's fees and costs of the lawsuit.

The "statutory rate" is currently set at 7.1 cents per song per unit. Manufacture 1000 copies of your album and the composer of each cover, or remake, is owed $71 per song.

The money involved has allegedly caused some local record producers to gamble that they won't get caught. Others simply haven't known the legal requirements.

Bernstein adds that permission is not compulsory if a song has never been recorded and released to the public at all.

The idea of asking permission to record a song -- and paying for it -- is a modern concept. It wasn't considered stealing or plagiarism when Lorenzo Lyons set new lyrics to an English hymn, "I Left It All With Jesus" and called his composition "Hawai'i Aloha."

Modern concepts of music royalties and copyrights were understood here in the early years of the 20th century, but sometimes imperfectly. Territorial Era music expert Harry B. Soria Jr. cites the case of the local composer who settled a debt by "giving" a song to someone else. The recipient later claimed to have written it.

Allegations have also circulated for more than 50 years that at least one prolific "composer" copyrighted as his own work songs composed or played by less knowledgeable Hawaiians, and then claimed the royalties.

Soria says those shenanigans generally ended in the '30s. However, misattribution and non-payment of royalties still deprives songwriters of the money they're entitled to. Hawaii songwriters get ripped off along with the others.

The tangled history of some local songs, and the failure of some local record companies to include composer names and publishing credits can make it difficult to find out who to contact. There may be several songs with the same or similar titles, or more than one writer with the same surname. There are also times when permission is needed from someone who can't be located.

Bernstein adds that a mechanical license does not include the right to change the lyrics "in any material respect."

"If you're a girl singing a song that was originally recorded by a boy, you don't have to use the original gender, but when you start changing verses or changing the entire character or the song -- no, you can't do that.

"You cannot alter the fundamental character of the copyrighted material. You can do a parody of a song, but for the purposes of copyright, a parody is something that makes fun of the copyrighted work itself. You can make fun of my song, but you can't take my song and use it to make fun of something else."

Mainland rap artists discovered that using pieces of other songs also requires permission. Including the lyrics of a song in the liner notes requires another license. Lip-syncing a song on a video requires yet another.

"Once you know (what to do) it's a very easy process," Bernstein says. "It can be harder to do here because there are some local authors who don't know what 'a mechanical license for the statutory rate' is, but if you want to be a song writer or a (music) publisher or a record label, knowing this is part of the deal."