The recording of covers is common practice in the music industry, and has only become more popular of late, particularly with the rise of YouTube. Still, by nature of the fact that a cover is someone else’s intellectual property, there are inherent legal complications. Here we look at what some of those might be.
Guest post by Justin M. Jacobson, Esq. of The Jacobson Firm
It is natural for musicians to record other people’s tunes. The subsequent version of an original song is called a “cover.” The creation and distribution of cover songs has become an increasingly widespread trend. It continues to explode with the increased usage of social media content distribution platforms, such as Facebook, Instagram and YouTube. These platforms permit individuals to instantly post their own created “cover” songs available for world-wide viewing. Some of these “covers” are monetized through the sale of the track or through advertisement revenue sharing programs. A few cover songs even reached several hundred thousand views, if not more. In these instances, if the creator of the new cover song does not first acquire the proper licenses to the original material, then they are potentially illegally using another person’s work. This usage has the ability to expose them to liability for copyright infringement; or, at the very least, the cover track could be removed for rights violations.
A copyright holder in a track has the exclusive right to publicly sell, distribute as well as license a sound recording (the song). Therefore, to properly monetize and publicly distribute a cover song, the covering artist must receive a license, which is the right to utilize the work, from the copyright holder(s) in the work.
There are two common licenses that may be required for publicly distributing and/or monetizing a cover song. They are a mechanical license and/or a synchronization license, known as a “synch” license. The purpose of these licenses are to ensure that the owner of a song is adequately compensated for another’s use of their work; or, could provide the owner with the right to approve a third-party’s use of their song.
A mechanical license from the original composition’s rights holder(s) is required for a cover song that is not paired with an audio-visual work. The license provides the licensee with the right to reproduce, distribute and/or publicly sell a protected work on CDs, vinyl, and/or as MP3 downloads. This means that a mechanical license is needed to sell a cover song on iTunes.
A mechanical license is a type of compulsory license, which means it is available to anyone willing to pay the established statutory royalty rate. The statutory royalty rate is determined by the Copyright Royalty Board. The current rate for a mechanical license is “9.1¢ [per track] for recordings of [a song] 5 minutes or less, and 1.75¢ per minute or fraction thereof for those [songs] over 5 minutes” per recording. This compulsory license can be obtained directly through the music publisher of the work or through a third party authorized agent, such as the Harry Fox Agency.
A “synch” license is necessary if an artist wishes to display a cover song with an accompanying audio-visual work, such as in a motion picture, a television show, or a video or computer game. Unlike a mechanical license, a synchronization license is not a compulsory license. A synchronization license can be obtained through the copyright holder of the composition, the music publisher or an authorized agent. A music publisher’s contact information can typically be acquired through the appropriate Performing Rights Organization’s repertoire database. The owner has the right to determine whether or not they desire to grant the license to another party. The copyright owner can also determine the license fee and any other restrictions they would like to impose on the subsequent recording.
With over 1.3 billion active users, YouTube is the world’s leading video streaming platform and is an extremely popular website for uploading cover songs. A cover song displayed on YouTube with some form of audio-visual work requires both a synchronization license as well as a mechanical license. The mechanical license can be obtained, as explained above, through the Harry Fox Agency. However, in an effort to streamline the licensing process and due to YouTube’s popularity for creating cover songs, many large copyright owners have recently entered into direct licensing deals with YouTube. These licensing agreements permit a user to upload the cover song to YouTube without having to directly obtain a mechanical or synchronization license. In these instances, YouTube provides the original track’s copyright holder with the revenues earned from any advertisements displayed during the broadcast of the user’s cover song.
Additionally, there is a common misconception among cover song creators that merely cite “the Fair Use Doctrine” and believe that it provides protection against copyright infringement. This is not true as the Fair Use Doctrine does not apply to cover songs, as it is only applicable to a work created to comment, criticize, or parody an existing track. (17 U.S.C. § 107) However, a more in depth conversation about the Fair Use Doctrine and its applicability to copyright infringement is beyond the scope of this article.
As evident by the continued increase in cover songs popularity each year, recording and uploading cover songs are a fun and relatively inexpensive way to show off talent and further a musician’s career. It is also a great way to bring new life to a classic track in an effort to gain exposure to new fans that do not know and love the original. However, it is important to remember that in order to protect against potential copyright infringement, an artist must first acquire the proper licenses to use the works.
This article is not intended as legal advice as a professional specializing in the field, such as an attorney, should be consulted.
© 2017 The Jacobson Firm, P.C.