It can be stylistically the same but it cannot share the same chord progression unless the progression is common to several songs. It cannot use the same melody and should avoid using identical phrasing. It might be obvious only because of the story and genre of music. But if the song were played by itself to an unsuspecting audience it should be clearly a different song.

If it is a parody then we added a touch more gray to the clear legal situation.

Bob,

That's pretty much what I was thinking. I think any tune played with a similar guitar will be enough to convey the point (just in case someone misses the overt references throughout the story).

Thanks

forget playing the song , is not the plot being "based"on the song , some sort of copyright legal beagal no no. Would piss me off if I wrote a song and someone based a film on it.

whoops - good news -
contact the publisher (try ASCAP) -
you should be able to BUY licensing rights for the song for not too much - IF you have an original performer (your friend) do the gig.

What costs a lot is when you try to get the original tracks - then you're dealing with publisher, agents, mangement and a whole lot of other crap.

But the song itself is imminently "getable" -

BTW - please correct here if you find otherwise (after you've actually tried to contact publisher)

v

risce1,

Perhaps I should've chosen my words more carefully. The plot is INSPIRED by the song. I'm sure I could think of more than a few movies that bear resemblance to other movies or seem inspired by songs. The script doesn't read like the lyrics to the song but the main characters are involved in a similar situation.

I appreciate your (and anyone else's) honesty. As it is not my project, I'm not emotionally (or otherwise) vested. I told him I would share his idea on this forum because I knew I would receive valuable feedback. Perhaps there are legal AND ethical considerations. I had not considered the plot a no-no but I'd be interested in knowing if anyone else does.

Thanks for the feedback.

EDIT -

Vic,

You must've posted while I was responding. Thanks for the info, that IS potentially good news. I'm going to look into that.

Thanks again!

Coupla comments;
Fred is right on, of course, it needs to be "unrecognizable" to be safe.
Unless....
It's recorded as a parody of the original song that you can argue is parodical (making fun of the song), which means it probably wouldn't fit into the movie, AND you'd have to argue that it is parodical if it's not immediately recognizable as such.

OK folks, here's the problem set (it's simple to define, is not just one problem, and is a bear to overcome unless you write your own music).

In *musical performances* anybody may perform any song that has been performed legally at least once by somebody other than the author. All one has to do is properly pay (from the revenue stream) the percentages listed on the "compulsory" copyright agreement provided by law via the USCopyright Office. It is usually cheaper, but not essential, to negotiate a lower rate with whomever holds the publishing rights.

For those not aware, legal rights are broken into 4 components, essential to understand if you wish to make sense of the remaining post. The music author and the lyrics author have equal share. That might be the same person, it might be several, but the initial breakdown is music vs lyrics. Then within each initial division there is an "author" share and a "publisher" share, split 50/50. The author *usually* has contracted the publisher share to a publishing company, because the publishing end of music is where the business gets complicated.

Now, to add to the mix, you must determine if the holder of the publishing rights has not allowed anybody else to cover a given song, because nobody but the author may perform any song anywhere without getting written permission from whomever currently hold the publishing rights. Copyright law steps in with a device called the "compulsory agreement" that allows any other performer to cover any song that the author has previously allowed at least one other person to cover. This prevents the publisher from arbitrarily (or viciously) selecting who gets to perform the song (if it is not going to be just the author).

BUT WAIT! There's more. For syncing any performance to *visual* works, there is the *additional* requirement of obtaining synchronization rights from the author of the music and the author of the lyrics. Yep, not the publisher, but the author(s). There used to be one clearing house in NYC that did this, but it was soooo darned messy that they simply abandoned the effort.

We movie-TV-UTUB makers are on our own to obtain rights.

Spot is correct, a parody of the song excludes Mr. Buffet from the picture, but nevertheless there remains the requirement to get written permission from the *authors* of whatever parody is used as music/lyrics to sync to the visuals.

Fortunately, the plot of the song cannot be copyrighted (although one dude has patented a story construct recently - HolyMoley that's a sea change!), so the plot can be used for weaving a similar story into a movie. Careful, though, about using *characters*. You can't put Jimmy (or any look-alike) in that movie without his written permission, because some Jimmy-lookalike Parrothead singing at the end is going to make some lawyers mighty twitchy.

To summarize:
1. Determine: Has anybody other than Jimmy Buffet ever recorded that song? If not, nobody else can without his permission.
2. If you get past step one, you must then get a synchronization agreement from the author of the music and lyrics.
3. If you get past step one and step two, then you can record that song (no matter how poorly) but you must find a happy accountant because each time the movie plays anywhere in the world you will owe compulsory royalties to whomever owns the rights to the music and lyrics, including for each copy of the DVD you sell.

You will be well advised to write a parody, or do something like have the actor play air guitar and look like he's humming the song to himself ("You all know the song, so think along with me..."). Daring producers would let the actor strum actual chords. Chords cannot be copyrighted. However, the minute a note is played purporting to be *something* from Jimmy Buffet, some idiot lawyer undoubtedly will write up a cease-n-desist paper in hopes of some sort of settlement (or at best just to have fun and ruin your day).

Remember the Robes. Stay under their radar.

Has anybody other than Jimmy Buffet ever recorded that song? If not, nobody else can without his permission.
Anyone can *record* their own version/master of the song; they only need pay compulsories on the song if the recording is placed on a mechanical device. However, to sync to video;
The owner of the newly recorded master needs to license the Master.
The owner (Jimmy Buffett or his publisher/authorized representative) must agree to license the Work.

Boy, you guys aren't making this any less complicated.

Here's what I found at the ASCAP website:

ESCAPE (Title Code: 350085384)
Writers:
HOLMES RUPERT

Performers:
HOLMES R
LIBAEK S
RUPERT HOLMES
TOBAGO

Variations:
ESCAPE SONG (PINA COLADA)
ESCAPE-PINA COLADA
PINA COLADA
PINA COLADA SONG
ESCAPE (THE PINA COLADA SON
ESCAPE PINA COLADA SONG
FOREVER IN BLUE JEANS ME
ESCAPE THE PINA COLADA SONG
ESCAPE (THE PINA COLADA SONG)
PINA COLADADA SONG THE

Publishers/Administrators:
HOLMES LINE OF MUSIC
C/O DARTMOUTH MANAGEMENT INC
ATTN: NORMAND KURTZ
228 W 71ST STREET
#1E
NEW YORK , NY, 10023

W B MUSIC CORP
% WARNER BROS INC
(WARNER BROS MUSIC DIV)
10585 SANTA MONICA BLVD
ATTN: JAY MORGENSTERN
LOS ANGELES , CA, 90025
Tel. (310) 441-8600

It seems Mr. Buffett did not write, nor is he the exclusive performer of the song in question. So, with that additional confusion added to the mix, what now? All I want is to legally play a similar (yet melodically different) guitar solo to that played on the song in question. No wonder you guys have always said "forget about it" whenever asked about licensing music.

BTW Spot, I couldn't find anything for Jimmy Buffett at BMI so I searched for you, having remembered you mentioning BMI. I still found nothing. Am I doing something wrong at their site? ASCAP was a breeze.

In summary, I think I'll advise my buddy to steer clear of the tune (or any derivative) entirely. It's just too risky.

Edited for failure to proofread before posting.

Hmm....All my SOAR recordings, Native Vision recordings, and 5-Fingered Music recordings are BMI-registered. Sounds like I need to check out their search. I will say that in the grand scheme of things, BMI simply is a far, far distant second for musicians, even though BMI specializes in broadcast-oriented registrations. :-(
ASCAP's search system is like the copyright ownership system; easy as heck to navigate.

Hi Goshep -

Another tack to take is to look for either royalty free music that is similar to the track you are looking for (no guarantees but I have seen lots of royalty free stuff that is reminiscent of other works - on purpose) or contact a not very well know artist who has the "feel" you are looking for - I quickly looked around and found this: http://cdbaby.com/cd/rayparkerjr - CD Baby is a distributor of some non-top 100 artists, some of which are excellent, and it may be much easier to acquire the rights to some of their work (I have emailed with more than one artist who has their work for sale on CD Baby and they are really nice folks for the most part).

Just a thought...

Bruce

Spot,
"Anyone can *record* their own version/master of the song; they only need pay compulsories on the song if the recording is placed on a mechanical device."

Ah, yes, my poor choice of words when I used "record". My intent was to point out that when *published* onto any listenable media, all authors have the initial right to remain sole performer to the exclusion of all other potential performers. This right protects you, Spot, and your original works, giving you the perpetural and de-facto right to be the sole performer for your own works. However, the moment you give performance permission to one other person, you are compelled to give that right to all who wish to perform (which is why the Copyright law uses the term "compulsory" and sets a compulsory fee that adequately protects both author and new performer).

I made this point because there are some performer-writers who wish to remain the sole-source of the performed work, and they have that right to exclusivity by law.

"The owner of the newly recorded master needs to license the Master."
Agreed in principle. I did not, in this thread, list the need to get written permission from the owner of the master. However, if the video maker also records the performance, then the video maker owns the rights to the master of that performance, and it becomes a moot point. I was urging people to record origial music - and I would also urge that recording effort to be done under a Work For Hire agreement so the studio has *no claim* to the master and that the video maker owns the master rights to the recording. By doing that, no Master Agreement would be necessary in that event. Which is why I chose to not mention the Master Agreement.

"The owner (Jimmy Buffett or his publisher/authorized representative) must agree to license the Work."
This gets to the meat of my posting. It is legally easy to get to the point of having a "sound-alike" performance that is legal, on a master that is legal, and therefor to have rights to publish the song *with the exception of syncing to visuals*. With visuals, there is the added step of getting the permission to sync from the author(s) of the orginal. The operative terms are "author(s)", "original", and "permission".

It is this added step requiring sync rights that is missed by the uninformed, because in the music world, visual sync is not a requirement.

Copyright law states "authors" not "publishers" for the sync.

In the event that the author(s) have conveyed *authorship* rights to a publisher, or have hired an agent to *represent* their authorship rights (which might be the publisher, of course), then yes one does not contact the author. However, most authors retain their authorship rights when they convey their publishing rights. Most authors like to see the author-share of royalties in the monthly mail. By retaining authorship rights they also retain priviledge to grant or deny sync rights (and they may be picky as to whom, where, when, and how).

To make my main point once again, *all* this goes away when one writes and records one's own music, or has it done under a Work For Hire agreement. Then the music is yours to sync to the visuals without all this searching, delay, paperwork, begging, lawyers, fees and robe-fearing. Not to mention, as you know Spot, making one's own music is fun, financially rewarding, and reusable long after the video is gathering dust.

You said "It seems Mr. Buffett did not write, nor is he the exclusive performer of the song in question."

I hate to state the obvious but you got the wrong song completely in your search.

That song is about a man and woman that break up and find each other again over Pina Coladas and Escape.

It's a Margarita not Pina Colada, try again.

Actually I think you may be confused about which song it is or which performer it is. Pina Colada was always Rupert Holmes and has nothing to with Jimmy Buffet whose signature song is Margartiaville.

BigRockies.com Your Home in the Rockies!

bigrock says:
"Actually I think you may be confused about which song it is or which performer it is."

goshep says:
you have NO IDEA how confused I am!

I was a little suspicious when I never saw Jimmy Buffett credited as a performer but I'm so clueless, I just kept on chugging. I'm going to crawl back under the rock from whence I came......