Can you cover a song and post a video of it on your YouTube or Facebook?
Hi, I'm Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your entertainment industry career and business, or just your hobby, to the next level. This one’s going to debunk a common misconception… stick around!
So, a Facebook group I'm part of has had a lively discussion going about covering songs and posting videos of their versions on YouTube and Facebook.
People are throwing all kinds of information around, and that's one of the big dangers of using online forums for your information. Not everyone with an opinion is an expert… So you're relying on people you don't know, and who don't have any particular obligation to get things right for you…
So let's unpack this a bit. Copyright can be tricky, and especially music copyright.
OK, first, we have to talk about the fact that for every recorded song, there are actually TWO copyrights.
That's right. Most people think about the RECORDING being copyrighted… But what they don't think about is that before the song could be recorded, it had to be written and composed… And that work was done by a songwriter, who might or might not be the artist who made the recording.
So, we've got a copyright in the Sound Recording, and that's owned by either the Artist who made the recording, or the Record Company that released it.
AND, we have the copyright in the Musical Composition. That is owned either by the songwriter(s) who created the song, or by the Music Publisher(s) that administer the song copyrights.
So, now let's look at “covering” the song. When you re-record a song, then you're not actually using the original Sound Recording… So that's not an issue.
But you ARE making a copy of the Musical Composition. And that requires a license.
Fortunately, the copyright law provides an automatic mechanism for getting this license. It's referred to as “compulsory licensing”, which just means that the owners of the song can't say no if you're just making a new recording. You simply have to pay a royalty rate on all copies of your new recording that you distribute. That rate is 9.1 cents per copy… And you can get this licensing handled, in most cases, through an outfit called the Harry Fox Agency, by visiting http://harryfox.com. And they take care of paying the publishers and songwriters what they're supposed to get.
BUT, that's not the end of our analysis… You see, that compulsory license only allows you to make and distribute what the copyright law calls “phonorecords”, which are essentially audio-only recordings, like CDs, Tapes, Vinyl copies, and yes, mp3 files, but not videos, or other formats where the music is combined with other stuff, like pictures or video footage.
For that, you need another kind of license, called a “synchronization” or “sync” license. And that license isn't as easy to get. You'd need to go straight to the owner of the copyright (the publisher or composer) for that permission… And you'd need to submit a formal request, and they'd quote you a license fee. Which could be anything… Or they could just refuse to give the permission at all.
And, if you wanted to post the video (or the audio) as a podcast, or to stream on your own website, there'd be other licenses you need to get… some from the publisher, and some from organizations like ASCAP and BMI. And possibly even from SoundExchange.
So that's the straight poop on making cover videos of your favorite songs.
But in the Facebook group I was looking at, people were questioning WHY so many fan-recorded cover videos of famous songs are showing up everywhere, and we're not hearing much about folks getting in trouble for it.
Well, that's a function of a couple of things.
First, the law provides a way that copyright owners can get stuff taken down from sites like YouTube and Facebook pretty quickly and easily by issuing something called a DMCA Takedown notice. And only the person who originally posted the offending material would really know about it, if the video just disappeared from their feed or stream, right?
Second, simple economics. First off the owners of the copyright have to find out about the infringing material. On YouTube, they've got some pretty slick software tools called ContentID that helps them identify a lot of this stuff. That system also allows them to just decide instead of having the video taken down, to place ads in and around it, and to collect the money those ads generate.
But even if that's not their game, these copyright holders know that suing a teenage kid for posting a fan cover video isn't going to earn them any public-relations points. And, lawsuits are expensive, so suing would mean throwing good money down the drain. Unless the defendant (that's the person who gets sued) has lots of money or other assets, the plaintiff could win, but would probably never collect.
But ultimately, relying on these factors is just plain dumb. You never know when a publisher or songwriter is going to be angry enough to pursue something, and lawsuits are expensive, win-or-lose. And, they're no fun. Even if all you get is a DMCA Takedown… That counts as what YouTube calls a “strike”, and if you get too many of those, they'll shut down your account and ban you from the service.
And I'm pretty sure Facebook has a similar policy.
So, my recommendation that you always get permission for what you're doing. But I'll have to save the “how-to” of that for another video.
That's it for this session of Asked and Answered. Submit your entertainment law questions at https://firemark.com/questions.
See you next time.
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