Legality of posting videos performing cover songs @ YouTube?

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Legality of posting videos performing cover songs @ YouTube?

Post by James Steele »

Just got a recently copy of an indy music e-newsletter. One of the subjects of the newsletter was an indy duo that has got a lot of hits by posting themselves performing covers of other popular artist's songs. In a nutshell, the idea is that fans will search for a well known song and find your rendition and may like it... hence you get hits, build a following etc.

Sounds like a good idea, but what was NOT discussed is copyright issues here. For example, although there may be no money being collected via YouTube (or is there? do they pay to PROs, etc?) my understanding is you can't just record and perform another person's song without at least paying royalties, right? For example, I can't just record a song by a famous artist and put my version on iTunes without paying royalties. How is YouTube different?

I see this all the time on YouTube and this mailing that went out may spark a whole slew of bands/artists posting videos of themselves performing songs by well-known artists, but WHAT is the legality of this? Is it that there's just no enforcement because the major artist's label sees this as driving sales of the real thing or there's some other benefit to them?

Any input is appreciated before I just join the herd and perform someone else's song to drive YouTube hits. :D
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Re: Legality of posting videos performing cover songs @ YouT

Post by mikehalloran »

YouTube? Don't worry about it. Their end user agreement, though draconian, does protect you. If the copyright holders have a problem with the post, YouTube will delete it.

Hopefully, Google and the PROs will finish their law suits in Rate Court so that the rights holders get paid but, if you didn't write the material, it is not your problem.

BTW, if you did not write the song and do not have permission from the publisher, you are not allowed to claim copyright on any contribution you made to the work. This includes arrangement, production, new lyrics, photos and video.

This does not apply to any web site where you do the hosting and are responsible such as internet radio.

Of course, I am not a lawyer and I was not giving legal advice. For that, consult an attorney.
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Re: Legality of posting videos performing cover songs @ YouT

Post by James Steele »

mikehalloran wrote:Of course, I am not a lawyer and I was not giving legal advice. For that, consult an attorney.
Completely understood. I knew that if you affixed another person's song to CD or posted it on iTunes, and minimum you'd have to get a license through Harry Fox, etc. I don't know how far reaching this individual's newsletter is, but I'd expect a surge in unknown artists posting their performances of cover songs in order to get "accidental" hits. Apparently the group interviewed had a great deal of success with this.
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Re: Legality of posting videos performing cover songs @ YouT

Post by mikehalloran »

Yes. When the rate court issues are settled, at least the songwriters will see something of this.

In the US artists have no performance rights except on internet radio which follows the European model where the artists have rights.

As for Harry Fox, you always have the option of imposing a compulsory license - either on the publisher or HFA - without paying HFA's ridiculous processing fees. It costs you the royalty and a certified letter the first time. If the publishers or HFA don't like it, they always have the option of not cashing your check. Knowing that HFA takes a cut of the royalty, I never pay the fees. They always cash the check.

When you call the publishers directly, they normally tell you the only way is through HFA. A compulsory license is your way of telling the publisher that your convenience is more important than theirs.

If, for some reason, the publisher doesn't cash the check, you still met the obligation for sending it certified. Title 17, Section 115 does not specify the form of the letter, only that the first one be certified and that you make monthly payments and include certain required information. When I do a one-off pressing, my letter explains that it is a one-off and that this check is the only one. Never had grief over that. Publishers always cash the checks, too.

Section 115:
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Re: Legality of posting videos performing cover songs @ YouT

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Re: Legality of posting videos performing cover songs @ YouT

Post by James Steele »

Kubi wrote:Interesting gray area, but I wouldn't be surprised if it was completely legal:

1. You are allowed to perform covers in public (i.e. live on stage) without permission. The copyright holder gets royalties from licensed venues.

2. You can't download from YouTube, so it's not a mechanical.

3. Is it sync license? No idea, but in the case of the usual "I play this into my video camera" I doubt it.

4. AFAIK, YouTube is now indeed covered by a blanket ASCAP license, so the performance license is covered. Not sure about BMI, but usually where one goes, the other is sure to follow.

So I wouldn't be surprised if this was completely OK. Of course even lawyers get stumped these days... and I sure as heck ain't one of them.
Interesting... worst could happen is they pull it or cease and desist. Seriously, some duo started posting their versions of popular songs and it ended up catapulting them to over 250,000 subscribers on their YouTube channel. Heck... might as well go for it.
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Re: Legality of posting videos performing cover songs @ YouT

Post by mikehalloran »

>1. You are allowed to perform covers in public (i.e. live on stage) without permission. The copyright holder gets royalties from licensed venues<

Correct - and has nothing to do with the issue. You are creating another work from someone else's song. In fact, prior permission is required from the publisher but no one is doing anything about it except when the rights holders ask for removal - then YouTube complies pretty quickly. Imagine the nightmare...

>2. You can't download from YouTube, so it's not a mechanical. <

Again correct - again has nothing to do with the issue.

>Is it sync license? No idea, but in the case of the usual "I play this into my video camera" I doubt it.<

Again, prior permission is required but no one is going there. For practical reasons, if you were to claim any part of the resulting work as your own for copyright, a sync license (permission from the publisher) would be required. You cannot copyright your video separately if you did not get permission from the publisher to use the music. No permission = the music publisher owning all rights to the resulting work.

See my earlier post regarding YouTube's agreement.

>AFAIK, YouTube is now indeed covered by a blanket ASCAP license,<

Your information is not quite accurate. The real situation is very complicated and being hashed out in Rate Court. Suffice to say, PRO royalties for YouTube videos are not your issue. OTOH, no one is getting paid for them yet. Someday...
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Re: Legality of posting videos performing cover songs @ YouT

Post by mikehalloran »

Interesting... worst could happen is they pull it or cease and desist.
The ISPs are shielded as long as they remove content immediately on notification from the rights holders. Not being a lawyer, I am not going to quote and interpret the law.

Those who make these videos are not shielded by anything. Imagine the nightmare if some publisher did decide to enforce their rights on this. Holy cow!
Seriously, some duo started posting their versions of popular songs and it ended up catapulting them to over 250,000 subscribers on their YouTube channel. Heck... might as well go for it.
If (when?) Google ever pays the PROs, the songwriters should see some serious coin for 250,000 hits. No better encouragement for the publishers leaving this issue alone - although some do ask for such videos to be pulled.

BTW, any songwriter who doesn't belong to a PRO and whose music is posted on YouTube will lose out when Google settles.

So back to the OP. Is it legal? My non-lawyer opinion is nope. The original songwriters will benefit someday so you aren't hurting them by doing so (again, I don't speak for them - just my opinion). Should you do it? It's up to you but to what end? Those who posts get 250,000 hits on someone else's song will never see a dime.

My advice: Write your own songs, register the copyrights as published so that, when Google pays, you are entitled to a share, join a PRO (I belong to ASCAP) so that you get paid your share, make your own clever videos that get 250,000 hits...

Do you see where I am going with this?
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Re: Legality of posting videos performing cover songs @ YouT

Post by James Steele »

mikehalloran wrote:My advice: Write your own songs, register the copyrights as published so that, when Google pays, you are entitled to a share, join a PRO (I belong to ASCAP) so that you get paid your share, make your own clever videos that get 250,000 hits...

Do you see where I am going with this?
Yeah Mike, I do. Here's the whole point though, and what the guy interviewing was espousing. I'm not naming names because I'd just rather not. But the idea is if you're unknown, you can write your own songs, register copyrights, register it with ASCAP (I've done this many times myself)... you can then put a video on YouTube which is all well and good. Guess what? Unless you're well known and have a huge promotional budget, you're not going to come close to ending up with 250,000+ subscribers YouTube channel. To hear the artist interviewed describe it, their hits and subscribers exploded when they started posting cover songs.

What this band was doing, was essentially leeching off the marketing investment of an established artist. Someone types in that artist name or the name of the song in a YouTube search, their band comes up and somebody curious listens to it, likes it perhaps, and then listens to other music of theirs and subscribes to their YouTube channel. Otherwise, how searches will turn up the little-known artist if nobody knows their name or the name of their song?

In a way, what I'm saying is that this is really sort of a sneaky way of search engine optimization. Thousands of times per day people are googling a hot song by a well known artist and you're appearing in the results. That kind of search action isn't happening on the lesser known artist's name or song.

So in a way, it kind of is sleazy, but I'm sure people will pass it off as "I just love [insert well-known artist] and this is my tribute to them" but in reality their capitalizing on that artist's marketing investment that made people enter that search term in the first place. The indy artist doesn't CARE that they're not getting any money or can't claim copyright... that's small price to pay for the sort of hits their going to get riding the coattails of the well known artist.

Perhaps there is a more kosher way to do it. For example, license the song and release a proper recording either physically or iTunes and then put up the video perhaps. Like I said, I raise this issue because when I listened to the interview, it seemed murky to me. I even wrote the indy music guru who sends out this email and brought up some of these issues and asked what he thought about that. Haven't heard back yet, but I only emailed this morning.
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Re: Legality of posting videos performing cover songs @ YouT

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Re: Legality of posting videos performing cover songs @ YouT

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Re: Legality of posting videos performing cover songs @ YouT

Post by James Steele »

Kubi wrote:For recordings you go to Harry Fox and pay the compulsory license fee for each pressing. For live performance you do not have to do anything ahead of time (you do fill out the performance sheet which the properly licensed venue is supposed to have on hand, if I remember correctly. It's been a long time since I played out live.) But you do not have to get a license from the copyright holders directly in either a live or CD scenario.
What was interesting is that unless I misunderstood, Mike was saying you could bypass Harry Fox and simply send payment to the publisher of compulsory fees with a certified letter telling them so and you may be covered. I may misunderstand that.

But performing live or recording what we commonly consider a "cover" is completely legit and/or very easily cleared - as it should be.
Well now you see I don't understand when you say "or recording" in that sentence. I thought if you make a recording and distribute it of someone else's song, they have to be compensated, or you have to a license.

Case in point: I was in a cover band years ago that did a KICK BUTT medley of Queen songs. We covered about five of their most popular songs in about 7 minutes or something, maybe more, and I have a performance recorded from a live show. I have wanted to post that recording on Facebook or MySpace or my site really bad, but since I do not own rights, I assumed that I can't just make it available for everyone to hear right? Or is the "streaming" technically "performance" since the THEORY is they can't download a stream (which we all know is rubbish-- there are so many ways to do it?
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Re: Legality of posting videos performing cover songs @ YouT

Post by James Steele »

Kubi wrote:Ah and here is the answer to James' question, pretty fresh off the press: Harry Fox now covers YouTube, much like they do records (although not sure if the process is in place yet. This is pretty brand-new.)

http://mediadecoder.blogs.nytimes.com/2 ... ad-accord/" onclick="window.open(this.href);return false;

Which means you were correct, it wasn't legit to post covers on YouTube before this.
Okay... that's interesting. So I wonder if you, the lesser know artist, are then responsible for paying Harry Fox and how do they determine what you pay? I better go read this. If would want to be legit. Looks like people will have to PAY now to piggyback on a famous artist's name recognition or song title recognition.
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Re: Legality of posting videos performing cover songs @ YouT

Post by mikehalloran »

James Steele wrote:
Kubi wrote:Ah and here is the answer to James' question, pretty fresh off the press: Harry Fox now covers YouTube, much like they do records (although not sure if the process is in place yet. This is pretty brand-new.)

http://mediadecoder.blogs.nytimes.com/2 ... ad-accord/" onclick="window.open(this.href);return false;" onclick="window.open(this.href);return false;" onclick="window.open(this.href);return false;" onclick="window.open(this.href);return false;" onclick="window.open(this.href);return false;
Which means you were correct, it wasn't legit to post covers on YouTube before this.
Okay... that's interesting. So I wonder if you, the lesser know artist, are then responsible for paying Harry Fox and how do they determine what you pay? I better go read this. If would want to be legit. Looks like people will have to PAY now to piggyback on a famous artist's name recognition or song title recognition.
Kubi: Your leaps of logic are interesting, I'll give you that. Of course it is OK with YouTube to upload - that's their business model. It has nothing to do with the basic question - is it ok to put the pictures/vids with the music in the first place without permission. That answer is still no but it is YouTube's responsibility to remove it if contacted.

The only thing that has changed is Google's new incentive to publishers not to remove such content: Money!

Read the article. It means that the smaller music publishers can now get advertising money. Since the suppliers (uploaders) of the pics/videos have no rights, no one needs their permission for YouTube to post such ads.

The uploader does not pay HFA - YouTube does when they decide to attach an ad to the video. The money goes to the rights holders - the music creators. Since the uploaders have no rights, they do not see a cent.
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Re: Legality of posting videos performing cover songs @ YouT

Post by mikehalloran »

James Steele wrote:
Kubi wrote:For recordings you go to Harry Fox and pay the compulsory license fee for each pressing. For live performance you do not have to do anything ahead of time (you do fill out the performance sheet which the properly licensed venue is supposed to have on hand, if I remember correctly. It's been a long time since I played out live.) But you do not have to get a license from the copyright holders directly in either a live or CD scenario.
What was interesting is that unless I misunderstood, Mike was saying you could bypass Harry Fox and simply send payment to the publisher of compulsory fees with a certified letter telling them so and you may be covered. I may misunderstand that.

But performing live or recording what we commonly consider a "cover" is completely legit and/or very easily cleared - as it should be.
Well now you see I don't understand when you say "or recording" in that sentence. I thought if you make a recording and distribute it of someone else's song, they have to be compensated, or you have to a license.

Case in point: I was in a cover band years ago that did a KICK BUTT medley of Queen songs. We covered about five of their most popular songs in about 7 minutes or something, maybe more, and I have a performance recorded from a live show. I have wanted to post that recording on Facebook or MySpace or my site really bad, but since I do not own rights, I assumed that I can't just make it available for everyone to hear right? Or is the "streaming" technically "performance" since the THEORY is they can't download a stream (which we all know is rubbish-- there are so many ways to do it?
Recordings and live performances have different rights and responsibilities.

Kubi: Your info on both is wrong. No one fills out a song list in licensed bars, restaurants etc. - the PROs don't want them unless it is a concert hall - then the promoter is responsible.

The HFA is a clearing house for mechanical rights - no one is obligated to use them. Sec 115 gives instructions for imposing a compulsory license directly on the publisher.

James: If Queen doesn't want your video on YouTube, all they have to do is ask and it will be removed. Stop worrying.
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