Miscellaneous Rumbles

OK legal guys, teach me about copyright

1

I'm a covers guy, always have been, and I make no bones about it. In the 35 years or so I've been playing live I've probably written maybe half a dozen songs worth a bean, and most of those I can't remember.

But I enjoy covering other people's stuff, whether it's trying a new take on something old or trying to recreate exactly the tones of the original, I get a kick out of it.

I thought that, after posting a few songs here, it might be nice to open a Soundcloud account. I was reading through their T&Cs and they state that they do not stake a claim to whatever you publish and it still belongs to you. That's good.

I get that I own my actual recording, but where do I stand on covering someone else's song and publishing it, either here or on Soundcloud? Does that put me in breach of copyright or are songs that already exist fair game for anyone to record?

I remember I recorded a CD with an old band many years ago and we had to pay a fee to MCPS based on how many tracks, how many copies printed, etc, but we were selling those so the rules may differ.

2

where do I stand on covering someone else's song and publishing it, either here or on Soundcloud? Does that put me in breach of copyright or are songs that already exist fair game for anyone to record?

Technically you probably can't do that, but as long as you or anybody else don't make any money off of it, I don't think ayone will complain, so you should be OK.

3

Whenever music is commercially released, each song must be copyrighted by the publisher to ensure that they can effectively rip you off for your publishing royalties. This should not be confused with the mechanical copyrghts which allow you to be ripped off by your record label. To release covers, you must license them from the publisher. Since you are the label, you can copyright your recordings and rip yourself off on the mechanicals. I hope this clears things up for you.

4

Beatbyrd has posted tons of covers on a website(very well done!) over the years. Maybe he has a take on this.

5

Whether you are making money from the cover recordings is irrelevant to whether or not this is permitted. Technically, if you are recording another's work, you must obtain a mechanical license to do so.

At one time, I had contemplated creating recordings to use as a part of promotional package for a band that I played in. The recordings would have been given away. Nonetheless, the license holders wanted to charge me many hundreds of dollars per song.

Walter may be right that no one will report you. Then again, what if the licensor learns about it somehow?

6

As I understand you, you want to post covers. Those would most likely be your own arrangements, would they not?

At that point, what's needed is a mechanical licence (as referred to by BZ above). Using samples, or full tracks from other recordings opens up a different can o' wormage, but a mech licence from the publisher/copyright holder is usually what's needed, if you indeed want to be completely above-board about it (and you should, karma being what it is and all that).

That said, my own experiences with trying to get the attention of those rights holders leads me to believe that there will not be a lot of time spent chasing down a relative amateur who isn't charging. I have applied to what I was told were the correct offices at Sony, Universal and Disney for permission to use several of my own arrangements of some 15 1960's hits in a play I've written for a local theatre society, and so far, the only sound has been utter silence. I wrote in November 2017, attached read receipts and waited for the storm..

So far, all has been very quiet.

7

You apply for a mechanical license thru the Harry Fox Agency.

8

Walter may be right that no one will report you. Then again, what if the licensor learns about it somehow?

My band's website originally had 15 second snippets of some of the songs we played, all covers. In under a year I got a message from ASCAP demanding that I take down the clips or start paying a roughly $350 per year fee. I took them down. I could have left "Besame Mucho" up, since it's public domain, but that would have painted a rather lopsided picture of what we do.

9

Beatbyrd has posted tons of covers on a website(very well done!) over the years. Maybe he has a take on this.

– Mark G

First of all, thanks Mark for that vote of confidence. I had as many as 80 covers on my website back when it existed. The web provider changed the terms of service (TOS), so I shut down the site. My goal on each song posted was to be as faithful to the original as possible.

Just prior to the TOS being changed, I heard that even if you generated no income (which I didn't), you could technically be liable for many thousands of dollars in damages if the copyright owner decided to go after you. That's per song. I never found out if that was true, but I covered a lot of different artists and was not comfortable with that much exposure to potential loss.

As far as I know, this exposure exists for YouTube covers also. There are ten jillion covers on YT. I'm not willing to gamble that some nut wouldn't pick my cover, so I don't bother with that venue either. YouTube potentially generates income.

BTW, if anyone misses the beatbyrd website, send me your email address.

10

It all depends on whose got the more expensive lawyers.

11

We released a variety of cds and vinyl over the last 25 years. Every one had a cover or two of some obscure song.

We never heard anything from anyone.

We released a single on the Estrus label in 96’. The b side was a cover of Carl Perkins “her love rubbed off”. Estrus just released it with no fan fair and nothing was ever said about it being a cover.

In this genre “ rockabilly from the late 50s by unknown hillbillies “ there seems to be little or no interest of copyright.

I will share this one cool story. We covered this song called “juvenile delinquent” by Ronnie Allen . It was on our first Cd. Out the blue maybe 3 or 4 years later the granddaughter of the artist emailed me. She had heard it on some obscure internet rockabilly show. She was so happy to know her grandads music was living on. She shared a little about his career. She was really genuinely happy to know someone was carrying the torch.

I have seen an ASCAP agent in the rockabilly bar we used to play. He was there for maybe a month of Sunday’s. He stuck the bar owner with a bill for over 5k. The bar owner never paid the upfront fee they were supposed to ASCAP. Every band that came through this bar was playing covers. It was pretty easy for the agent.

12

It all depends on whose got the more expensive lawyers.

– wabash slim

Occasionally the David slays the Goliath. A couple years ago there was a great local story about a Madison chocolatier beating an infringement lawsuit filed by Mars, Inc. She's also a former criminal defense attorney, but certainly ill-equipped to take on a mega-corporation's IP lawyers in federal court. They filed suit in Virginia, no doubt to make it impractical for her to defend. But she got it tossed and turned around and immediately filed suit against Mars in Madison's Federal court. Shortly thereafter, they settled. The terms were not made public, but she's still selling chocolates a few blocks from my house under the allegedly infringing name, so you can bet she's isn't paying a king's ransom to Mars. Worth taking a moment to read.

https://madison.com/wsj/new...

https://madison.com/wsj/new...

13

You can monetize your covers on YouTube...

14

Edit: as seen on the Bluecap’s screenshot, Youtube seems to have contract with most of the copyright owners. So if you publish cover song on Youtube, it will be recognized and usually you will get notification that the copyrights are owned by someone and part of the possible advertisement income will be paid for the owner.

15

Besame Mucho is published by Peer International. It is not in the public domain. The writer passed away in 2005, the song has been awarded for more than two million airplay’s by BMI.

16

Deke...the bottom line from a legal perspective is a person can’t record and broadcast their version of someone else’s song (cover), whether it be on a CD or on the internet or performing it in a public place, without obtaining a license from the rights holder/publisher.

Depending on the song in question a mechanical license is usually not too expensive...unless you’re producing thousands of units. On our first album we recorded 8 covers and four originals. For the covers we had to pay the pertinent publisher for each cover song and it’s calculated per unit. For example, a run of 500 CDs cost us roughly $40 per cover song for the rights to ‘publish’ each cover 500 times. So the entire album only cost us about $350 or so in licensing costs. Now...if we were an uber successful band and were printing a million units of our album then of course our licensing costs for the cover songs would be commensurate with that large volume of product. A lot of money.

Of course bands all over the world play cover versions of songs in bars every night. Nobody really checks in on that anymore. As Gasmoney mentioned it used to be common for ASCAP or BMI reps to visit bars and check if the band was playing any songs from their roster. If they did, and if the bar owner hadn’t paid the license fee to allow that song to be broadcast from his/her stage then they were hit with a fine.

Licenses are granted on a territorial basis. You also need to bear that in mind. When you record cover songs on an album and pay the publisher of each cover song for the right to use it you may find out that your license only covers use in Europe...or only in the USA for example. We discovered that the hard way when we we thought we were covered for our licensing worldwide only to be contacted by the Canadian Artists’ Rights authority who let us know that it was illegal to sell our album in Canada unless we paid for the song licenses all over again for legal use in Canada.

Of course millions of folks post cover versions of songs on You Tube and other online sites and it’s an impossible task for the rights owners to track down every single useage of a song and chase down the few bucks in royalties owed, but the fact remains that it is illegal to publish (post on the internet) a cover song without paying the pertinent license fee to the song’s owner/publisher.

In my day job in the movie business we deal with clearance of rights on a daily basis. We can’t use a person’s name or an image or a piece of music or any brand name or even a piece of dance choreography without paying for the rights to do it. To ignore that legal requirement is inviting a whole heap o’ headache.

You may be aware of the dance move called ‘flossing’ that is all over the internet these days. That move was ‘invented’ by a kid who posted video of himself doing the dance. It went viral and suddenly everybody was doing it. A couple of movies and a video game production picked up on the popularity of the dance and included it in their productions...without asking permission from the kid who allegedly invented the dance move. The kid’s attorneys are suing big time now...and they’ll win.

On a movie I worked on we wanted our characters to do a spoof of the West Side Story dance fight between the Sharks and the Jets. We weren’t allowed to use those dance steps unless we paid the license fee. It was tens of thousands of dollars. We changed our dance moves!

Anyhow...long winded answer to your question. As others have said here you can go ahead and post cover versions of songs online and most likely you won’t get hassled but make no mistake, by the letter of the law it’s illegal.

17

Based on this article it is not illegal (Edit: maybe not so clear, but at least they are trying to tackle the issue with content identification and by asking the permission from the copyright owners who can then either allow the video or ask to take it down) to post a cover to youtube for a song which copyright owners have agreement with Youtube to get compensation and when copyright owners have granted the permission to allow the covers in Youtube.

http://drummagazine.com/leg...

E.g. In Finland songwriters copyright is handled by TEOSTO, and they have agreement with Youtube to get some payment that will be distributed to copyright owners.

Edit: I just double checked the TEOSTO guidelines and it was stated that you don’t need to ask any separate permission to upload a cover song to Youtube for the copyrighted material that is handled by TEOSTO. So at least in Finland it is perfectly legal. Copyright owners still have right to deny covers of their songs in Youtube.

18

Based on this article it is not illegal (Edit: maybe not so clear, but at least they are trying to tackle the issue with content identification and by asking the permission from the copyright owners who can then either allow the video or ask to take it down) to post a cover to youtube for a song which copyright owners have agreement with Youtube to get compensation and when copyright owners have granted the permission to allow the covers in Youtube.

http://drummagazine.com/leg...

E.g. In Finland songwriters copyright is handled by TEOSTO, and they have agreement with Youtube to get some payment that will be distributed to copyright owners.

Edit: I just double checked the TEOSTO guidelines and it was stated that you don’t need to ask any separate permission to upload a cover song to Youtube for the copyrighted material that is handled by TEOSTO. So at least in Finland it is perfectly legal. Copyright owners still have right to deny covers of their songs in Youtube.

– Jukka

Good point Jukka, but it’s important to note that the key to why it is legal in Finland to upload a cover song to You Tube is precisely because TEOSTO is representing the rights of the original artist/copyright holder so that permission is being sought.

In a lot of other territories this isn’t happening which is why You Tube have to take down videos that infringe on copyright. They do this not out of any sense of protecting an artist’s rights...they are protecting themselves from legal action.

You Tube is a broadcasting platform in the same way as television channels, recorded and released music and any bar or club where music is played to the public. They aren’t a rights protection entity and can be sued if they are not seen to be making a reasonable effort to prevent copyrighted material being uploaded without permission.

The growth of the internet opened up a whole can of worms with rights issues and it’s so large, with millions upon millions of people using platforms like You Tube, that it’s not at all practical, and in fact impossible, for rights owners to chase down every unauthorized use of their material.

19

Good luck with understanding the YouTube debacle. Thank you, Wheelgrinder, for your excellent explanation of licensing, and the need for it.

By the way, here’s the publishing info for Juvenile Delinquent.

21

And furthermore...

– Deed Eddy

So I guess I'll only be posting my rockin' Bach and Beethoven covers to YouTube... And apparently I can even do "Happy Birthday"!

https://www.latimes.com/loc...

22

Wheelgrinder, exactly.

When TEOSTO and Youtube re-negotiated the agreement last time in 2017, it was quite tough play when Youtube blocked temporarily ”all” copyrighted material to be seen in Finland, as they tried to force a better deal for them. Most people got angry to TEOSTO as Youtube announced that ”sorry people you cannot watch your favorite videos as TEOSTO do not let us to show them to you”. Finnish TEOSTO is of course quite small player, so it would require international co-operation of copyright owners to get fair deals with giant companies like Youtube/Google.

23

Thanks all for your input, all very valuable.

In the UK we have MCPS (Mechanical Copyright Protection Society) and PRS (Performing Rights Society) who look after mechanical duplications (CD, vinyl, etc) and live performance respectively (although I think they may be one body now). (Sorry about all those brackets in the last sentence). As I mentioned before I've paid a licence fee to MCPS in the past for CD print runs when I was pro, and most law-abiding venues have a PRS licence, so the question of whether I'm contravening copyright law when I play has never arisen.

But the internet has changed things - a lot. It was only when reading Soundcloud's T&Cs that it occurred to me I may be doing something wrong (yeah, pretty naive, I know...).

So where does recording the odd cover at home and posting it on the internet fit into this? It's not a live performance so it doesn't come under the PRS remit, but neither am I making copies, so purchasing a licence from MCPS is complicated as it's impossible to say how many times people listen to it, download it, etc. I'm not selling anything so there's no revenue, but the copyright owner is due their cut so that has to be borne into consideration.

Furthermore, who exactly needs the licence? I recorded the material and it's stored on my web space (there's not even a website to see, it's just an FTP link), but does that make me liable or my hosting provider? Or Tim because I posted a link it here? I assume me, but these are complications that need to be addressed. It looks as though the big players like Soundcloud and YouTube are working with the copyright owners to make sure they are paid, but again, my little efforts here don't come under that banner either.

Maybe I need a streaming licence...

I think on balance it's an MCPS issue so I'll investigate with them first and report back when I know more.

24

One possibility is to use service like DistroKid. Last time I checked it would cost something like 10$ a year per cover song and they will then handle copyright fees and distribute the song to different streaming services like Spotify, iTunes, etc.

I think it will be difficult to handle it legally by sharing it from your own website directly.

25

PRS for Music now take care of both sets of rights in relation to the ‘musical work’ which is the composition as opposed to the sound recording of the composition

The rights you mention in relation to making a reproduction and performance still exist in kind. From an online perspective for streaming , in the case of the UK, there is the mech or reproduction right(onto a server or device) and the performance or communication right ( making available and delivery via network etc). However , I’m not sure how it works with covers for digital in the UK. I had assumed that the service(Spotify etc) is licensed directly by the rightsholders for the use of their works on the service regardless of who they are performed by. Anything considered an adaptation would usually be excluded from the grant of rights. So if u wanted to change lyrics you would need to seek permission from the rightsholders


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