Carol Forsloff – The Today Show hosts recently interviewed the new YouTube video sensation, Noah Guthrie, doing what is commonly called a “cover” song of LMFAO’s”Sexy and I Know It,” with the assumption that copyright infringement is not an issue. The problem, however, is that cover songs do violate the copyright laws much of the time and create ambiguity for many performers.
The problem of cover songs and what is copyrighted and what is not is presently creating a stir in the music industry in some circles, as more and more people with high numbers of views are receiving notices of copyright infringement. In some cases, entire YouTube accounts of some of the more popular musicians have been deleted. This means millions of songs by fledgling musicians and folks waiting to be discovered for their music prowess are at risk. It further means that risk for a young musician awaiting that big chance, as occurred with Noah Guthrie’s “I’m Sexy and I Know It” getting more than 2.5 million views on YouTube and ending up as a guest on the Today Show.
The publication Wired looks into the matter of copyright infringement and the subject of cover songs in its online article that refers to the issue as one that is entangled by a number of complexities and misunderstandings. Wired relates information about the agreement made by YouTube and various music publishers that the copyright owners receive a portion of advertising revenue on accounts where cover songs are performed. The problem is, however, that the agreement doesn’t cover all publishers, only those who signed the agreement; and it is very difficult, if not impossible, for the typical musician to determine which publishers have made an agreement and which ones have not. Some musicians believe that just because they are making no money, they are immune from copyright problems, however the law encompasses use of music that belongs to someone else regardless of whether money is earned or not.
Copyright laws do provide exceptions to the use of copyrighted material. Certain types of educational activities or use by a journalist can be done, so long as the use is partial content or when it is clearly demonstrated that the music in its entirety is essential to the understanding of a given concept. Still that too is iffy, as folks grapple with the complexities of copyright issues.
What about religious music? It turns out that religious groups have no inherent protection but can purchase an agreement allowing the use of copyrighted music in the actual worship service. It does not, however, cover any special use by groups, including choirs, as one researcher on the topic has found.
It’s also risky to take advice from the miscellaneous posts about copyright, such as one on eHow that discusses how to do cover songs legally. Performing cover songs during live sets, a writer maintains, is representative of Fair Use under the law. But the law does not make that assumption and requires permission and the payment of a fee for any public performance, live or mechanical.
While musicians wrangle over music they can or cannot perform, and under what circumstances, those who write songs believe they too have a voice, which is why the copyright laws went into effect and were extended by Sonny Bono’s efforts to extend the period of time when material could be covered by copyright. Right now music performed between 1923 and 1978 will not begin to enter the copyright-free status until 2019.
This is what one attorney maintains musicians need to know about cover songs and the matter of copyrights: lCover songs reflect the limited exclusivity provided by copyright. The original copyright owner has an exclusive right to publish or release the first sound recording of a song. After that, all other performers have the right to cut their own version of the song.” These, the attorney remarks, are called mechanical rights and “under the law, the compulsory fee is paid through the Copyright Office to the copyright owners of the composition. Presently, the rates are the higher of 9.1 cents per song or 1.75 cents per minute of playing time.
Adam Rafferty is a man with a mission on music, as a performer and someone who has examined for himself some of the problems encountered by musicians in relationship to copyright laws. He wails about his own situation, where he has done cover songs himself and worries about the future of these videos. He points to the problems that have occurred with many people on YouTube, as the enforcement of copyright laws continues to heighten, as they have had to delete popular accounts. His advice: open up a non-infringing account to protect original work and copyright-free material if the account is at risk because of cover songs. His underlying statement, however, is for the musician to perform his/her own material, therefore avoiding copyright problems in the first place. Added to this is a vast database of copyright-free material written before 1923, which is the date used by the copyright laws as the cutoff for writers and producers to make claims.