Legality of posting videos performing cover songs @ YouTube?

[James Steele]

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

It's not a video. Simply an audio recording. I did not know if putting it on a music player on a Facebook page would be a violation? And what of it was downloadable? Would that be wrong? Not trying to be a worry wart. Gibe me a little credit for wanting to do the correct/ethical thing.

[Kubi]

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[Kubi]

Kubi: Your info on both is wrong.

See above post for clarification. You are misreading my statements.

[Kubi]

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[mikehalloran]

>The point is that Harry Fox is being put in charge for clearing online video music rights since last week.<

No. That is not correct. They entered into an agreement to pay publishers their share of advertising revenues - that is all. No changes to the copyright law were made nor are implied. You are reading way too much into this. HFA isn't clearing anything for anybody.

>they put Harry Fox in charge of YouTube. Which suggests they are leaning towards considering YouTube covers as mechanicals, rather than as a sync license. This makes a huge difference:<

Again, that is not correct. They are treating advertising revenue only in a way that resembles mechanicals. The issue of performance rights has not been touched - those are being duked out between the PROs and Google in rate court. The HFA agreement, likewise, has no impact on the large publishers who made previous deals. HFA is only the clearing house so that YouTube can now put advertising on any video they want now that there is a way to pay the little guy.

>On the other hand, mechanicals on previously released songs are priced by the compulsory rate, and can NOT be withheld by the copyright holder. If you want to cover a song, nobody can stop you, as long as you pay the license fee. And that fee will always be the same, whether you're covering the Beatles or, uh, me.<

Only under a compulsory license. One is always free to try and negotiate a lower rate with the publisher.

>Sync licenses are entirely up to the copyright holder. They can be priced at will, and withheld at will. If the copyright holder objects to you putting a song into your movie, or wants to charge you a small fortune, there is nothing you can do to get around that and use it anyway or get away with paying less. You're SOL unless you agree to the copyright holder's terms.<

Yep.

[James Steele]

Okay... well I got a reply from the email list guy. Might as well say who it is since it's public. Bob Baker. He sent me this link:

http://music-promotion-blog.blogspot.co ... utube.html" onclick="window.open(this.href);return false;

I'm not sure about the accuracy of what he's saying. I guess the main issue for a small indy artist is:

1) Will I get sued and end up paying a ton of money?
2) Last but not least-- is it ethical?

[Kubi]

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[Kubi]

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[mikehalloran]

>1) Will I get sued and end up paying a ton of money?<

No. The ISP - Google in this case - is responsible, not you. As long as they remove on request, they can't be sued either.

If it was your computer or web site and not Google's that was doing the hosting, different matter completely. That's file sharing and you don't want to be going there.

>2) Last but not least-- is it ethical?<

It doesn't matter. It has become an accepted practice. The recent agreement shares advertising and sometime in the future the PROs will come to an agreement regarding performance royalties. There is great incentive to the rights holders to encourage this - $$$ is now available.

Whether or not Congress catches up and amends the law is not your issue.

[James Steele]

That's very interesting. On the other hand I'm pretty sure there's some sort of dialog when you upload video to YouTube that says you affirm that you have the rights to upload the material. I suppose of this is not the case then the repercussions for the indy artist would be having their YouTube account and content deleted? Interesting.

[MIDI Life Crisis]

I'm not sure where some of the thread participants are getting their information. Wishful thinking, perhaps?

Under copyright law, distribution is clearly a right of the copyright holder. YouTube posting without a license is unauthorized distribution.

It is incorrect to say the uploader is not legally responsible and that the ISP is. They are both liable. You may think what you want, but I defy anyone who believes this to post a definitive section of the copyright law that provides for that. You won't find it.

Believe what you will and take your chances. I've brought enough infringement cases to know a few things.

1 - Properly registered works are fully protected.

2 - Publication of the work does not give others the right to perform, arrange, or distribute the work (except as fair use - which this is not, or as a mechanical - which this could be someday, but is not yet.)

3- All parties involved in the illegal distribution are liable. Even if the ISP adds a disclaimer, they can still be named as a defendant or codefendant. If the Court decides the work was infringed, the Court assigns the fine and the award.

Please do make stuff up, folks. I'm not a lawyer, but I've played one in more than a few cases for infringement, breach of warranty, fraud, and a few other violations. The bottom line is that U.S. courts have a wide amount of latitude in deciding cases and laws are continually being tested, appealed, and rewritten.

Take your best shot at fame and fortune, but if you are depending on a forum like this for your legal advice, you are a fool of a client and that shirt on your back might be exchanged for one with a series of numbers - in the Big House!

[Kubi]

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[Kubi]

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[MIDI Life Crisis]

As an addendum to Michaels points, the works don't even have to be properly registered to be protected. Lack of copyright registration merely limits the type of damages you can collect.

Actually, lack of a registered claim precludes you from suing in the first place. Protection begins at creation. Proof of origin (in cases where the originality of the work is in question as opposed to direct copying) is harder to prove and requires expert witnesses and extensive court costs - if it even reaches trial. Most defendants settle or plaintiffs simply give up due to the costs involved.

An innocent infringer may hang on to his claim if he believes he work was stolen and if he prevails, be handsomely rewarded for the efforts. Most often, these are out of court cases that are settled quickly. The YouTube folks have the resources to defend themselves as do the publishers. If they wanted to press the issue, they would prevail. Again, resources v. return.

But let's say the YouTube video went viral and was somehow picked up as part of a GEICO commercial and inadvertently aired and/or otherwise widely distributed for profit. Then the original owner would have grounds to sue the broadcasters, GEICO, YouTube poster, and YouTube.

Might make for a nice cottage industry.


Got lyrics?

ps- In re: Harry Fox: Notice the words for the publishers he represents. A non-affiliated publisher or writer is still free to pursue a claim. The Fox thing is great news for the public and for the publishers, especially the bigger ones. Policing becomes an issue, as does collection. What the fudge, I don't do covers and don't really care a lick about the issue. I care a big lick about the concept behind the protection.

[Kubi]

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