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Why Posting a Cover Song on YouTube is Copyright Infringement

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Categories: Articles, Copyright, Infringement, Legal Issues, Music, Music Industry, Music Publishing, Royalties, Social Media, Tags: , , , , , , , , , , , , ,

by Erin M. Jacobson, Esq.

Erin Jacobson music attorney music industry lawyer youtube cover song copyright infringement

New artists trying to get discovered will frequently cover famous songs and upload videos of them performing these songs on YouTube. Many artists do not realize that without securing the proper permissions, posting a cover song on YouTube is actually copyright infringement.

User-generated cover song videos require permission to use the composition and permission to synchronize the audio elements with the video.*

To cover a composition, one needs to get a mechanical license. A mechanical license allows someone to record a song that has already been recorded and distributed by another artist. A mechanical license is most often obtained through the Harry Fox Agency. The related royalty stream is called a “mechanical royalty” which is a royalty payable to a composition owner for the privilege of being allowed to record that composition. This is the 9.1 cent royalty often mentioned in the music business.

However, the mechanical license only covers audio recordings of the original composition. It does not cover the synchronization of the audio with the video portion, for which one needs to obtain a synchronization or “sync” license. This is where most people get tripped up because they don’t get a synchronization license from the composition owner (usually the music publisher).

An artist who does not get permission from the owner of the song he is covering to synchronize his cover version with the accompanying video is infringing the copyright of the original composition.  [tweetthis display_mode=”button_link”]Failure to get a sync license for your YouTube cover song video is copyright infringement.[/tweetthis]

The consequences of posting a cover song without the proper synchronization license vary. In some instances, the copyright owners of the original composition don’t know about the cover on YouTube or they choose to do nothing about it. In other cases, the copyright owners will send a DMCA takedown notice to YouTube and have the video taken down. Further still, someone who posts an unauthorized cover might get a cease-and-desist letter or the threat of legal action, and might actually get sued, leading to liability for a lot of money in copyright infringement damages.

Do you have more questions or need a license for your project?  Contact Erin now to get your questions answered.

* In the case of a cover song, the original master recording is not used because someone else is making his or her own recording of the song and therefore no label permission is necessary. If one plans to use the original master recording in a video, that person would have to go to the master owner (usually the record label) and get a master use license to be able to pair the master recording with the video. I won’t discuss the performance right here since YouTube and similar websites have blanket licenses from the performance rights organizations. However, if an artist is uploading these videos to his or her personal website, that artist is also liable for the payment of performance royalties.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or mattersThis article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user and Erin M. Jacobson, Esq. is not acting as your attorney or providing you with legal advice.   The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on,act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

 

 

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How Do You Prove That Someone Stole Your Song?

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Categories: Articles, Copyright, Infringement, Law, Legal Disputes, Legal Issues, Music, Music Industry, Tags: , , , , , , , , , , , , , , , , , , , ,

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Image via hivesociety.com

A lot of musicians email me claiming they have great cases for copyright infringement. Copyright infringement does happen, but there are more people who think they have a case than those who actually do. (Please note that I am not a litigator and the below explanation is only a general overview of the basic principles in a copyright infringement suit. Actual cases may include nuances not discussed in this article.)

In order to sue for copyright infringement, you must have your work’s copyright registered with the United States Copyright Office. You can register your works yourself (the online registration fee is about $35), but I recommend an attorney like me or a service like Indie Artist Resource to file the registration for you, as some of the questions and principles covered in the application can be confusing.

Keep in mind that under copyright law, two similar works can be created independently of each other without infringement. For example, two independent musicians on opposite sides of the country could create original and copyrightable songs that sound very similar to each other, without knowing each other or ever hearing each other’s music. After all, there are only so many notes and chords that can be played.

However, if you do feel someone has actually infringed your music, you will have to prove that you have a valid copyright and your work was sufficiently original to warrant the validity of that copyright. Next, you will have to show that the alleged infringer copied your work. The analysis for infringement involves examining these three areas:

1. Direct copying
Here, you would have to show that the accused infringer directly copied the first work when creating his subsequent work. There is often no way to show direct copying, so the courts will instead look at the next two areas described below.

2. Access
When direct copying cannot be proven, courts will often infer that copying occurred if it is shown that the accused infringer had access to the allegedly infringed composition. This can be proven by showing that someone had direct access to your work, such as if you gave a copy of the song directly to the alleged infringer, or gave it to someone who had access to that person, like a producer or label executive.

Access can also be shown if the prior work is widely disseminated, such as a famous hit played on the radio and well known by the public. Here’s an example of how access was surprisingly proven in a real case: In Bright Tunes Music Corp. v. Harrisongs Music, Ltd.,[1] George Harrison’s song “My Sweet Lord” was deemed to infringe on the song “He’s So Fine” recorded by The Chiffons in 1962.[2] The court didn’t require actual proof that Harrison had heard “He’s So Fine” before; it relied on the fact that “He’s So Fine” had the top position on the Billboard charts in the U.S. for five weeks and hit No. 12 in England in 1963[3] – coincidentally at the same time The Beatles were becoming famous.[4]

The court concluded that Harrison unconsciously plagiarized “He’s So Fine” when he composed “My Sweet Lord” because “his subconscious knew [the musical combination of notes] had worked in a song his conscious mind did not remember.”[5] The court went on to further conclude that it did not believe Harrison deliberately copied the song,[6] but ruled against him anyway because access to “He’s So Fine” was assumed due to its fame and the two songs had enough similarities to satisfy the court.[7]

Therefore, if you have written a song, but it is not well known by others and you have not given it to someone where you can show a direct connection to the person who supposedly copied your song, you don’t have a case. It’s not enough to write and record a song that only a small number of people have heard, and then try to file a lawsuit when something shows up on the radio that you think sounds similar, when in reality you have no proof to show the other person even knew of your song.

3. Substantial similarity
The third analysis looks at the similarities, if any, between the two songs. If the degree of access to the first song is high, the amount of proof required to show similarity between the two songs will be lower than if there was not easy access to the first song.

Here, a court will look objectively at which parts of the first song were allegedly copied, such as the melody, lyrics, etc. A court will also look at the subjective opinion of lay listeners, which is basically whether the average person would think the two songs sounded the same or similar enough when listening to them both.

This point in the analysis is where many people argue that it is supposedly acceptable to copy three notes of an existing composition or sample three seconds or less of an existing recording without infringing copyright. In fact, there are no such rules allowing this practice. Infringement is infringement.

If you have looked at the facts and can truly show that someone has either directly copied your song or has had access to your song, and their song is very similar to yours, then you will need to contact an entertainment/copyright litigator to discuss the potential merits of your case. Keep in mind that these lawyers do expect to get paid for their services, although there are a few who may be willing to take important cases on a contingency. Check with the lawyer on his or her practices.

Footnotes:
[1] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (1976).
[2] Id.
[3] Id. at 179.
[4] Id.
[5] Id. at 180.
[6] Id. at 181.
[7] Id.

This post was originally published at Sonicbids.com.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity. This article does not constitute or create a lawyer-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.