Everybody is into YouTube these days … past few years, and we’re always talking about the hottest music video we just saw, the craziest video that left our jaws dropping, or about one of our favorite hilarious YouTubers (for kicks, at the end of this post, I’ve listed a few of my favorite YouTubers and friends – haha sorry for not being sorry about the shameless plug). In fact, those of you who are reading this blog post may be thinking the same thing … “what if I were to start my own YouTube channel?” … or “I already have a successful YouTube channel and so I’m just here to brush up on some legal stuff” … well that’s great! You’ve come to the right place, and if you have more questions after reading this post, be sure to hit us up and retain an entertainment attorney address your questions.
One major myth that needs to be dispelled is that it’s ok for YouTubers to do cover songs. WRONG. It’s actually illegal to distribute cover songs (aka uploading the cover song video to one’s YouTube channel), if proper authorization and consent wasn’t given from the copyright owners and I’ll tell you why in a little bit. But why are YouTubers blatantly doing this and allowed to do so? Ah, I’ll cover that in a quick minute too. So, can YouTubers do anything legally without constantly worrying about infringing copyright or having their video be taken down? Yes! And that’s why you’re reading this.
Firstly, it’s important to address what parts of a song are covered by copyright protection, and they are the actual composition (music and lyrics) and the particular recording of that composition. (We’ve went over this briefly in our music sampling series of blog posts, but eh, we’ll do a refresher here) So, let’s say I produce and write a song (aka the composition) and now you want to sing or use my song … what happens? You would need to obtain what’s called a mechanical license in order to do this, and this mechanical license would give you the right to record, publish, distribute, and/or sell the composition in audio form only. What if you wanted to also do a cover video of your song then? In that case, you would need to obtain what’s called a synchronization license, thus giving you the right to record and publish your own version of my song in a video. Are these licenses easy to get usually? The mechanical license – YES, and the sync license – not really, because they’re expensive. How do you obtain these licenses for music clearance? Please go back to my music sampling series of blog posts to find out how. =)
So, if you’re required to get a sync license in order to do a cover video, and it’s illegal to do so otherwise, why are there so many cover videos on YouTube out there??! And is it still illegal if you do your own “special” arrangement of the song? Yep, sure is because the composition (music – melody and harmony – and lyrics) is copyright protected still as no matter how crazy the arrangement might be, it’s still the same song (caveat: unless it qualifies as a “derivative work”, but I won’t talk about that until I do a blog post on “fair use” later). So why then isn’t YouTube taking your video down? Great question! Although YouTube’s Content-ID match system can easily detect your cover song video, almost always, the artists, music publishers and performing rights organizations (PROs listed here in an earlier post) are actually happy to earn money through advertising and don’t file DMCA takedowns against your content. In fact, now there’s an added feature where copyright owners can elect to share advertising revenue with cover artists who are YouTubers. But what about those rare instances where the copyright owners are persistent about having no cover videos of their song out there at all, and YouTube is required to take them down? Well, sadly enough, nothing can change that. Yup, this is where we can say that technology and the internet have advanced so much and so fast that now our own management systems and laws can’t even keep up. So, what to do now? Well, in light of all of these technological advances, it would make sense to implement changes in our copyright law but unfortunately, that is something that the government does, and it’s out of our hands. And it doesn’t look like Hollywood will be strongly petitioning the government to do so any time soon, as even within, there seems to be a big division on what should or shouldn’t be changed in U.S. copyright law.
So, what’s the takeaway with uploading cover song videos to YouTube? What you’re doing is illegal, so don’t be surprised if you happen to be that unlucky 1% whom YouTube or the copyright owner eventually contacts about your infringing cover song video and has you take them down. Sorry! (But note that you can still sell your audio only cover song recordings on iTunes, Google Play and other distributors as long as you obtained the mechanical license, the easier one to get)
And now, one last thing before I go, what if you want to use a favorite artist’s song as background music in your video, or if you want to upload a video that you just now noticed has a song playing in the background from the radio or an mp3 player, what now? Are those illegal uses if you haven’t obtained the appropriate licenses? YEP, they sure are. And because your video actually has the actual song recording by the particular artist, instead of needing just a mechanical license or a sync license, you would now need a master use license and synchronization license as the these would give you the right to use the existing copyright recording – master use – of a copyrighted song – sync – in your video. What if the actual song is no longer protected by copyright (fyi, there’s a limit to the number of years a work can be under copyright protection) but the recording is? Then, you would just need to obtain the master use license. Alright, that’s it for today. Until next time. =)
Oh, and here’s my list of favorite YouTuber/friends:
Kevjumba, Wong Fu Productions, Niga Higa, David Choi, gunnarolla, jasonchumusic, JubileeProject, Clara C, charlieissocoollike, chestersee, ardenBcho, DavidSoComedy, Kinna Grannis, JuNCurryAhn, DANakaDAN
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