From the February 2017 issue of DRUM! | By Kurt Dahl
Youtube is full of cover songs. From indie artists to toddlers to superstars, some of the most viewed videos on the Internet happen to be cover songs. Whether the video involves a rock band performing live or a six-year-old on a piano, most of these cover songs are posted without the permission of the song’s copyright holder. In other words, they’re posted illegally.
Covers on Youtube have become a heated topic in the music business in recent months, as record labels and publishing companies have started to aggressively enforce their copyrights, leading to an increase in video take-downs and in some cases, lawsuits.
So, how do you post a cover song to Youtube legally? To find the answer, we must understand the two main copyrights in a song: one in the composition (lyrics and music), and one in the sound recording.
When someone records and releases a song, you are free to do your own cover version of that song by obtaining a mechanical or “compulsory” license. Then, every time your cover version is sold or reproduced, you (or your record label) must pay the statutory royalty fee for that song (currently 9.1¢ per copy in the US).
But a mechanical license is not enough. The original artist holds certain rights in the song under copyright law, including the exclusive right to reproduce, to prepare derivative works, to distribute copies, to publicly perform, and to publicly display the work. The mechanical license covers reproduction and distribution, but not public performance and display. Therefore, you need a synch license as well as a mechanical license to legally publish a cover song on Youtube (unless the song has fallen into public domain).
How do you obtain a synch license? It’s not always easy. One option is contacting the copyright owner (often the artist’s publishing company) and negotiating a reasonable rate for the synch license.
Another option, which is likely easier: Youtube has deals with many record and publishing companies through its Content ID Program. Under this program, at the copyright owner’s sole discretion, Youtube may monetize your video with advertisements rather than take it down, and the copyright owner gets a share of the profits. When a video of yours is found to be in copyright violation, the copyright owner can decide whether the video should be monetized or removed, and you would receive notification of their decision.
If you fail to obtain permission, will you be sued? Not likely. These types of disputes only go to court in extreme cases. Most times, the worst-case scenario is that Youtube will pull your video, and you’ll receive a copyright notice from the owner or publisher.
My suggestion: Do your research. If you want to avoid getting permanently banned from Youtube, look into what songs are covered in Youtube’s 2012 agreement with the National Music Publishers Association (NMPA) and the Harry Fox Agency (HFA). Try to reach out to the song’s owner. And just like in baseball, when you’ve got two strikes, make your next decision wisely!
KURT DAHL is a renowned entertainment lawyer and full-time touring musician with his band One Bad Son (onebadson.com). You can find legal and career advice based on his experience in the music industry over the last 15 years by visiting his website, lawyerdrummer.com.