Legality of posting videos performing cover songs @ YouTube?

[Kubi]

[removed]

[MIDI Life Crisis]

Contestable.

In America at any rate, you cannot force a person to join a commercial enterprise without their consent. Perhaps, as a BMI or ASCAP publisher, one's works might be applicable to the rule if the PRO has an agreement for the catalogue. If one don't publish the work as an affiliated publisher and the work was so infringed, it could be argued that the copyright owner had grounds to sue. A judge would have to decide the merits and allow it to proceed or not. If it was willful infringement and money was made, chances are the rightful owner would be offered a settlement (usually chump change at first). The defendant could also dig their well-heeled heels in and wait out the plaintiff's resources. That would suck and should make one think before taking action. A good lawyer will tell you the same thing. Investment v. return.

Having no financial relationship with Fox, one cannot be prohibited from initially pursuing the matter. Good luck with that. Then again, it might even be a constitutional case. Laws, especially "new" laws are always contestable.

[mikehalloran]

I am not going to quote all of MLC's comments but he is absolutely correct - except on one point - and otherwise does not contradict anything that I have written on the subject.

The Digital Millenium Copyright Act does protect Google if they remove copyrighted material from YouTube on request. I am not a lawyer so go interpret it yourself.

HFA doesn't "clear" anything in the YouTube deal. They are merely the conduit for advertising revenue. To clear rights, those rights would have to be available to them - nothing in the deal changes Title 17.

Google assumes "rights" never granted by Congress. They are being challenged in the courts.

No one has to join the HFA but Google won't talk to the little publishers so it's not a bad idea if you want to be paid. No one has to join a PRO in the US but the courts hold that, if a venue has all three licenses, no one who isn't a member can go after them.

Kubi: It is a clear violation to put your pictures or video or lyrics to someone else's work without prior written permission. Now, the HFA deal makes it extremely unlikely that someone would come after you since they now stand to make money - but they could. It is also a violation to post lyrics, sheet music or TAB without permission - compulsory licenses exist for audio recordings only. It does not matter how many times and ways you re-phrase your argument, you are wrong.

But one point should be cleared up:

>Actually, lack of a registered claim precludes you from suing in the first place.<

On a published work i.e. one that has been made available to the public in any form, that is absolutely correct. The work must be registered as a published work on form PA (one song only can be registered on form SR if published). Unpublished works have different rights.

>Not true. It just precludes you from suing for more than real damages. <

Absolutely incorrect. No registration on a published work? No ability to sue. Registration as Unpublished but you made it available on a recording or online? Again, no ability to sue. If someone violates your rights, you may go after damages from the date you filed the correct copyright certificates but no one owes you a dime from before. There is a famous case involving a California songwriter and Led Zeppelin that cost her an estimated $18m before she filed. English courts follow the same rule - I don't know about other countries.

Unpublished works have different rights: You have the right to the first recording and you can go after someone who claims your unpublished works as their own. Make a work available to the public, you lose those rights.

Kubi: It's time to stop talking through your hat. The correct info is out there.

[James Steele]

This is all very interesting. I think anyone would want to do this on the up-and-up if there was such a way. I STILL need to read that link I posted above from Bob Baker, because I inferred that the duo he interviewed did somehow get rights, but I didn't hear that being discussed in the interview. One of the songs they covered was by Beyonce, which made them pop up a lot in search engines and within YouTube.

I'm also reminded of the Dan Band which has made a career of parodying many cover songs. If Harry Fox now has a way to deal with this, I wonder they determine was an independent artist must pay if they upload a video to YouTube of of their performance of a famous artist's song? Does the uploading artist pay "per view?" It's so confusing.

Some of these efforts too, are very low budge affairs, like a kid in his bedroom with a guitar playing one of his favorite songs. It would seem difficult to go after them and bad PR for a major artist too. Could you imagine some girl tapes herself singing Beyonce in her bedroom and is told she owes money? Talk about bad press? I think they'd just have YouTube pull the songs.

Funny thing is I had this happen to me. Of course, in my position the fact that some kid in England would want to video himself in his bedroom playing guitar along to one of my songs, is flattering and very cool.



George is one of my fans on Facebook. His video only has 98 views... so of course this is nothing. I'm just a small guy and the CD isn't even out yet. I'm just kinda flattered a kid halfway across the world would want to do that. The last thing *I'M* going to do, even though it's within my rights, is flag the video down for copyright violation. And actually it is technically "licensed" because George wrote me and asked me if he could do it and I happily agreed. Although, I wonder if I should just as a formality send him a letter or email formally granting him license and keep a copy just so that's clear it wasn't a case of "open and notorious" violation and I took no action, thus forfeiting enforcement rights?

Like any of this matters, huh? I'm just stoked the kid did that.

[James Steele]

Registration as Unpublished but you made it available on a recording or online? Again, no ability to sue. If someone violates your rights, you may go after damages from the date you filed the correct copyright certificates but no one owes you a dime from before.

Hey Mike... sorry to be a pest. So what you're saying is that if I submitted a form PA and when I first wrote a song and indicated the song was UNPUBLISHED... if I subsequently record the song and make it available online (even streaming?) I need to submit an updated registration to the copyright office (and another $35) indicating the work as PUBLISHED or I cannot sue if someone uses my music without permission because my last form PA for that song shows it "UNPLUBLISHED?"

If so I'm going to have to go back over all my forms and double-check what I've done. I haven't finished the CD and what I've posted for streaming has been demos, so I haven't even bothered with Form SR yet. What if one has a song on iTunes that as a form PA (published), ASCAP reg, but no filed form SR? Doh....

[Kubi]

[removed]

[MIDI Life Crisis]

No. One registration is specific. Fine point: you cannot sue for criminal infringement (the higher fines) w/o a formal registration. Since all my infringements have been willful they all qualified as potentially criminal. I really don't know the rules on innocent infringement and shouldn't have made a blanket statement.

[James Steele]

I'm out, I'm sick and tired of being insulted for merely contributing to the discussion. What the heck? (and I didn't type "what the heck"...)

Maybe one of the board safeguards kicked in. I don't have time right now to go back over what was said, but I agree that everyone needs to be civil. One can disagree with others and say "I think you're mistaken..." rather than something like "I don't know what the hell you've been smoking..." Okay... nobody said the latter exactly (again, I don't want to get down into who said what), but you get my point. We can discuss this respectfully. Thanks.

[mikehalloran]

Kubi:

No insult is meant when I say that you are wrong. It does not change the facts, however. Treat it as a learning experience.

>Fine point: you cannot sue for criminal infringement (the higher fines) w/o a formal registration<

Correction: You cannot sue for any copyright infringement on a published work without a correct, formal registration. You are not owed royalties before that date unless plagiarism is involved.

>Mike, you can sue for infringement of an unregistered work.<

Read what I posted earlier. If you don't believe me, that's what copyright lawyers are for.

[MIDI Life Crisis]

Yes. What I said. You cannot sue for infringement unless you register the work.

[James Steele]

Kubi:

No insult is meant when I say that you are wrong. It does not change the facts, however. Treat it as a learning experience.

Mike, with all due respect, you didn't say "you are wrong" or even "incorrect" which is the diplomatic way to express that sentiment. You said:

Kubi: It's time to stop talking through your hat.

It seems to me that a bit different and I can understand someone feeling defensive. No point in that. Thanks.

[mikehalloran]

> If Harry Fox now has a way to deal with this, I wonder they determine was an independent artist must pay if they upload a video to YouTube of of their performance of a famous artist's song? Does the uploading artist pay "per view?" It's so confusing.<

James, you keep pounding this point. It's not an issue. The HFA has absolutely nothing to do with the person uploading. Since your images and videos belong to the songwriter/publisher (according to Title 17) or to Google (according to YouTube)... In any case, they don't belong to you once you upload them to YouTube (unless it is your song - then see the previous sentence).

Regarding YouTube: there are no mechanicals. HFA is now a conduit to distribute advertising revenues to the small publishers. Since they already distribute mechanical royalties to publishers, they're the natural choice. That is all that is happening. ASCAP and BMI would have to get their 70 year old Consent Decrees amended before they could do this - not likely.

Publishers pay a set-up fee to HFA - but they expect to get paid out of this. If you want to be a part of this, you will pay the HFA to set up your own songs so that, if Google puts advertising on them, you get paid.

It does not matter what the bloggers blog, the interviewers opine... Neither Google nor the HFA are Congress or the courts. Google may not understand this but the HFA does.

[mikehalloran]

>Of course, in my position the fact that some kid in England would want to video himself in his bedroom playing guitar along to one of my songs, is flattering and very cool.<

Oh yea! Now - register it with the HFA, get YouTube to put an ad on it and figure out a way for it to get 250,000 hits.

And then please, please, please tell us how much money you made out of it!

>And actually it is technically "licensed" because George wrote me and asked me if he could do it and I happily agreed. Although, I wonder if I should just as a formality send him a letter or email formally granting him license and keep a copy just so that's clear it wasn't a case of "open and notorious" violation and I took no action, thus forfeiting enforcement rights?<

You or Google own the video, not George. The only enforcement would be if he sold copies of that without paying you. The only time you would grant him a license would be to let him sell copies.

Do keep in touch with him. If a radio or TV show in England runs a story on him and quotes that recording, you want to alert your PRO. ASCAP members do this through ASCAPlus Awards.

[James Steele]

>Of course, in my position the fact that some kid in England would want to video himself in his bedroom playing guitar along to one of my songs, is flattering and very cool.<

Oh yea! Now - register it with the HFA, get YouTube to put an ad on it and figure out a way for it to get 250,000 hits.

And then please, please, please tell us how much money you made out of it!

LOL. I can tell you it would be very little. I did mention 98 hits? I just thought it was cool. I'm a nobody in the scheme of things, so not many people are going to find it, because not many people are going to type my name or the name of my song into YouTube's Search.

Back to the original issue that made me post this, it seems the main point is that unknown artists are USING cover songs to have people accidentally find them while searching or a video of a major artist and thus getting more people to see them than they'd have a prayer of otherwise. I doubt they would care about income. For them, as long as they don't getting in any legal problems personally, it's all upside because more people find them this way and if they like the song itself they share the video with others. The duo used in the example now has something like 250,000+ subscribers to their YouTube channel.

>And actually it is technically "licensed" because George wrote me and asked me if he could do it and I happily agreed. Although, I wonder if I should just as a formality send him a letter or email formally granting him license and keep a copy just so that's clear it wasn't a case of "open and notorious" violation and I took no action, thus forfeiting enforcement rights?<

You or Google own the video, not George. The only enforcement would be if he sold copies of that without paying you. The only time you would grant him a license would be to let him sell copies.

Do keep in touch with him. If a radio or TV show in England runs a story on him and quotes that recording, you want to alert your PRO. ASCAP members do this through ASCAPlus Awards.

Interesting stuff. Thanks Mike. And yes, my PRO is ASCAP. And again, I have no delusions here. I get confused by all this stuff, and it seems with all the electronic means of distribution it's getting harder and harder to keep track of. I just wanted to make sure that in the LONG-SHOT that the song is ever worth anything someday, I haven't inadvertently forfeited any rights by not having some "t" crossed or "i" dotted.

Thanks for the enlightening advice.

[James Steele]

Okay... I had to delete a post. I already did make a post about how to talk to one another on this board and that we all make an effort to be polite if we disagree with someone. If someone is still angry with someone else take it up via PM rather going OT here with a personal beef you have with somebody. Please do this rather make me step in. Thanks.