by Erin M. Jacobson, Esq.
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 matters. This 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.
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Why is it ok for Spotify to broadcast my album tracks (all original compositions) without ever consulting me or contacting me and without my permission? Adele can stop them because she has the money and lawyers behind her but a little one man operation has no chance against these thieves, who make money out of my music without my permission.
I don’t know the facts of your situation, but it possible a company that you are affiliated with granted the license. You should consult with a lawyer to review the exact facts of your matter.
I’m not convinced. All this would apply if the poster were MAKING MONEY or indeed set out to make money DIRECTLY from performing this song in a public place (on YouTube). If the law were interpreted in the way you describe, it would be illegal to whistle a tune while walking down the street.
Youtube, of course IS making money and should pay royalties, but the poster, who did not set out to make a profit, need not.
I have stated the law correctly. While I can appreciate your opinion, it is not how the law or music industry works.