cover song licensing advice

[Walt Collins]

Hi! Been a while since the old CW forums, but I finally made it over here to the new CW forums. Nice to see many of the same names I remember from years ago. Wow, I'm really getting old.

Anyway... after recently installing the new CbB (I just found out that it's not the same as SONAR!), I found some old projects from 5+ years ago. One that caught my interest is a cover that I recorded of Black Sabbath's "Into The Void". I started noodling around and decided to clean up the guitar and drums a bit. Fortunately, I discovered my guitar chops are a bit better than they were 5 years ago.

But before I spend too much time on it, I wanted to ask about licensing. I've never released a cover song, and generally have always avoided them because I'm worried about licensing issues. But cover songs can be fun! And I know some of you guys have recorded cover songs as well, so I figured I could maybe get some advice from my old friends here.

So, is it really as simple as getting a $15 pre-paid Limited mechanical license from someplace like HFA or Tunecore or wherever, assuming I never sell more than 500 copies (which seems like a safe assumption)? Or is there some kind of ongoing yearly fee? Or other stuff to beware of?

Thanks in advance.

[PhonoBrainer]

Walt!!! (Trying for the "Cheers!" "Norm" vibe)

 

A few years back I went through the Harry Fox website, you have to estimate how many downloads or whatever you expect. It wasnt super killer expensive for just one song licensed for a reasonable number of dload or streams.

And I seriously doubt they put a lot of effort into auditing.

[Bruno de Souza Lino]

DistroKid has such an option with their plans. You pay an extra fee on top of the subscription per song.

[slartabartfast]

The terms of your licensing contract apply. If you are dealing with a legal agent of the copyright owner, and they are in turn following the terms of their agency agreement you are covered. Why the cost and terms should vary from one agent to another is one of those mysteries of capitalism. It may well pay to shop around for the best terms. It is likely that some of the offers are from someone who is just selling on from another agent or offering a "service" that just connects you to another agent, like those services that offer to "copyright" your original work for a fee when in fact they are just registering your work with the Copyright Office for a substantially higher cost than the office would charge you to do so yourself. It is conceivable, but unlikely, that someone who does not have a legal agency might offer you a license, in which case you would be infringing the copyright if you proceed. Harry Fox is the agent (sometimes the sole agent) for many publishers, and can be considered reliable. 

Remember that the license you require depends on the method of distribution you plan on using. A simple mechanical license lets you record the audio, but will not cover the same song if it is part of a video playback, which would require a synchronization license.  Technically almost everything on YouTube would require a sync license, but YT has made agreements with many publishers to offset their liability in hosting infringing content by putting ads on your music video, the revenue from which they split with the publisher. Not all copyright holders (including  independent composers) have bought into this deal, so there is some risk in assuming that you are immunized for everything you post on YT.

[Walt Collins]

Thanks for your replies guys, and re-hi!

Yeah, for now I just want to upload audio to soundcloud, and maybe distrokid and bandcamp as part of an album release at some point down the road. Not planning any videos.

It looks like Songfile (part of the HFA website) wants $18 to license a 6 minute song for 200 streams. Seems okay to me.

 

[slartabartfast]

Check whatever streaming service you plan to use for their policy. It is not clear to me how these services would confirm that you have a license. Some of them have an automated takedown system that will flag an upload as copyright infringement if their music ID robot decides you have uploaded something under copyright to someone else. You may find yourself involved in appealing a takedown or "strike" even if you have a valid license. How multiple services would confirm that you are limiting downloads numbers to remain within your licensing terms is a mystery, so having that aspect of the license enforced by the services seems impossible.  Also note that the Songfile streaming license is time limited.

You are getting a compulsory license, which you could get without the help of the agency by notifying all of the copyright holders of a previously released released audio recording and paying a very small fee per download. That would require a fair amount of research effort and bookkeeping along with regular payments directly by you to the copyright holders. A fee of less than $20.00 is probably a bargain.

These music sharing sites would probably not work at all if they were really diligent about copyright issues--which is why the SoundCloud "monetization" model was acceptable to the publishers whose intellectual property was being stolen in overwhelming quantity. The cost of policing the theft by the publishers was prohibitive relative to the returns. Consider your licensing fee to be a small price for insurance against an unlikely, but potentially very expensive, claim  of infringement. 

[Walt Collins]

Thanks for the detail @slartabartfast. Are there services that offer longer licenses? 1 year seems like an annoyance. I'd love a set-and-forget type of license if possible.

 

[DeeringAmps]

2 hours ago, Walt Collins said:

Are there services that offer longer licenses?

I don’t think so. I do the HFA Songfile on the few covers I have up. 
t

[Dave Maffris]

Just to chime in here, I have released CD's with some cover material. I use Easy Song Licensing, they often have sales, and like others have stated, you estimate how many and what type of distribution (radio plays, CD manufacturing, digital releases, etc.) and the cost goes up depending on the number--it can be increased later if you sell/stream more copies than anticipated. 

That being said, I don't know if posting your cover on Soundcloud requires licensing, because it is not monetized. So if it plays, but you don't make any money on it, and you are not saying it is your composition, you still own the sound recording you have created and posted, therefore the copyright for THAT version is yours, I believe. I have posted covers on SC in the past, as well as made YouTube videos of covers, and while Youtube flags them, they don't require you take them down, and as long as no money is going into your pocket without the composer/publisher's permission, you should be ok, I've never had to take anything down in that situation.

YMMV, but I'm pretty sure this is accurate information, feel free to check other sources, but I'm guessing it's not a big deal as long as it's been posted for fun and not profit. But if you put it on a CD or other media that is likely to generate anything from pennies to dollars, I'd go through Easy Song Licensing or the equivalent entity and pay for the license, just to be safe.

Hope this helps.

 

[Shane_B.]

41 minutes ago, Dave Maffris said:

I have posted covers on SC in the past, as well as made YouTube videos of covers, and while Youtube flags them, they don't require you take them down, and as long as no money is going into your pocket without the composer/publisher's permission, you should be ok, I've never had to take anything down in that situation.

I had YouTube take down one of my video's. I was playing just the lead to a famous song, set it to private, and no monetization. They took it down and gave me a copyright strike. I contested it and they removed the strike.

So in my experience you can have a cover taken down on YouTube, even if set private and don't ask for money. If you get 3 copyright strikes on YouTube your channel is automatically deleted.

[Dave Maffris]

1 hour ago, Shane_B. said:

I had YouTube take down one of my video's. I was playing just the lead to a famous song, set it to private, and no monetization. They took it down and gave me a copyright strike. I contested it and they removed the strike.

So in my experience you can have a cover taken down on YouTube, even if set private and don't ask for money. If you get 3 copyright strikes on YouTube your channel is automatically deleted.

Oh, I'm sure that is true--in this case, it sounds like you were actually accompanying the famous track. I was talking about when you create the recording entirely from scratch. But glad they removed the strike, since you were not monetizing. I think the key here is being sure that whatever you are posting was 100% done by you, and not just a mash-up or remix using other artist's recordings, because those master recordings are owned entirely by the artist or by the recording company that recorded it.

 

[Shane_B.]

4 minutes ago, Dave Maffris said:

Oh, I'm sure that is true--in this case, it sounds like you were actually accompanying the famous track. I was talking about when you create the recording entirely from scratch. But glad they removed the strike, since you were not monetizing. I think the key here is being sure that whatever you are posting was 100% done by you, and not just a mash-up or remix using other artist's recordings, because those master recordings are owned entirely by the artist or by the recording company that recorded it.

 

It was 100% done by me. It was just a midi backing track of drums and bass. I think on small channels like mine there is a manual review maybe and I think someone messed up. I could be wrong but that's my gut feeling. 

[slartabartfast]

The issue with YouTube allowing infringing work to remain on their service is not so much that the poster is providing it without charge to the streaming service/public, but rather that the true owner of the copyright has made a deal (invisible to you) with YouTube that it will not contest YouTube hosting or you posting your upload in return for a portion of the revenue YouTube makes from placing ads on the page. My understanding is that this forbearance of an otherwise legitimate action for infringement is very different from a license granted to you by the copyright owner. You do not actually have a right to use the work, and certainly not to publish/exhibit/stream it on some other site or venue, but rather a reasonable expectation that you will not be sued by the owner so long as the deal between copyright holder and YouTube remains in force.

The true owner of the copyright has the option to issue a "takedown notice" under the copyright law, or make a "content ID claim" and then choose under what conditions it will allow the work to be used. If the copyright owner is not paying someone (usually YouTube) to monitor uploads or plays, then your infringement may simply go unnoticed. You are not being permitted to use it just because it has not been discovered, you are just getting away with it. In that case you do not have any assurance that your infringement will not eventually be discovered, and legal action initiated. Many, many of the most popular songs are owned by major publishers that have the deal with YouTube, but small publishers or individuals sometimes do not.  In that case their only option is to file a takedown and/or initiate a lawsuit. 

[Shane_B.]

What I don't agree with in regard to YouTube is the fact they can give you a copyright strike for a private video set to non-monetization. If it's all scanned automatically by a bot then it should be that if you would ever set it to public and/or monetize it they would know immediately and then block it, notify you, and perhaps give you an option to purchase a mechanical license rather than delete your video and give a strike.

If they had half a brain, as soon as they discover you have uploaded a copyrighted work, they should demonetize the video, block the video, and put a link next to it in your account with a quick way for you to obtain a mechanical license. 

I honestly believe that most people don't do it because they simply don't know they have to or they don't know how to go about it. Or they are like me and feel like I should be charging them for the exposure and if they take it down so be it. If not then that's ok too because I don't expect anything for putting it up. What I flat out disagree with though is someone who would put a cover up and ask for donations or monetize the video.

I've never heard of anyone getting sued because they posted a cover of a song. I'm sure if we scoured the net we could find something but I did a quick search and the only thing I found was an article about Prince suing the family of a toddler who was dancing to one of his songs on YouTube.

I actually have a lot of songs on my channel but 100% of everything is set to private. About 50% are flagged and say I can't monetize them. I've only ever had 1 strike and I had it removed within minutes.

Here's a good link by a lawyer that explains how copyright works on YouTube in a quick easy read.

[slartabartfast]

22 hours ago, Shane_B. said:

What I don't agree with in regard to YouTube is the fact they can give you a copyright strike for a private video set to non-monetization. If it's all scanned automatically by a bot then it should be that if you would ever set it to public and/or monetize it they would know immediately and then block it, notify you, and perhaps give you an option to purchase a mechanical license rather than delete your video and give a strike.

The first point to note is that you cannot use a mechanical license for audio that plays with as a soundtrack to a video presentation. What you would need would be a synchronization license, and since this is the same intellectual property that would be needed if the song were to become part of a billion dollar grossing motion picture, most copyright owners would want to negotiate the terms for these rather than rely on a licensing robot to get them the best deal. The availability of the compulsory license for making purely audio recordings is a part of the copyright statute that enables musicians to do audio only cover songs of previously released/published recordings. Since a compulsory license does not require the consent of the owner it is much easier to obtain. 

Whether YouTube is actually obtaining a limited synchronization license for you would depend on the specific wording of the contract that they negotiate with the copyright holder. It seems more likely that they are simply making a deal between the copyright owner and YouTube that immunizes YouTube from liability for hosting infringing material after they have been notified of its true ownership. YouTube does not need any such immunity so long as they remain blissfully (and not very credibly in many cases) unaware that the material the poster copied illegally is owned by someone else. The safe harbor terms of the MMCA already provides that. The fact that no one has been sued because of a YouTube cover, if true, probably represents the copyright owners calculation that the high cost of litigation (including loss of goodwill) will not likely be offset by the benefits of an award that could actually be collected from an individual poster. I have not found anything to indicate that the poster actually obtains legal immunity that would bar a lawsuit against the poster, even if the video production is claimed and monetized by one of the owners of some infringing material. Such immunity or specific protection may be written into the YouTube agreements with the copyright owner, or the owner's acquiescence to the copying could perhaps serve as an effective defense that there is an implied license. There is certainly nothing to indicate that infringement by the poster would not be actionable in the event that the owner does not accept an agreement to exercise a content ID claim instead of a takedown.  

The "strike" system is a YouTube company policy, not a statute. You make a point that YouTube could test uploads for infringement and warn instead of issue a strike for an infringement discovered prior to hosting the post. That would be a policy issue for them. It is not clear if everything is scanned by a bot that will actually detect everything that is infringing. No bot is going to be able to detect a song that has only been performed by the author at a local coffee house, and if YouTube finds infringement of material that does not belong to one of its publishing partners, it would be obligated to block the material and unable to claim ignorance of its true ownership in the event of an action for infringement. It would make more sense if YouTube were to act like some of the other commercial infringement detection services that scan the net (or respond to positives) exclusively for content owned by their paying customers.

They do have a method to appeal a strike and get it removed and the production reinstated.  That gives the poster the opportunity to defend his work, and also enforces his responsibility to confirm his ownership of all parts of the production prior to uploading it. But you should understand that the infringement occurs, not when the production is viewed for a price by an audience, but when the first and only copy is created in your computer. If YouTube learns that they are hosting infringing content in any form, they risk losing the MMCA safe harbor protection and becoming liable themselves for publishing infringing content.

Edited February 15, 2021 by slartabartfast

[Shane_B.]

27 minutes ago, slartabartfast said:

The first point to note is that you cannot use a mechanical license for audio that plays with as a soundtrack to a video presentation. What you would need would be a synchronization license, and since this is the same intellectual property that would be needed if the song were to become part of a billion dollar grossing motion picture, most copyright owners would want to negotiate the terms for these rather than rely on a licensing robot to get them the best deal. The availability of the compulsory license for making purely audio recordings is a part of the copyright statute that enables musicians to do audio only cover songs of previously released/published recordings. Since a compulsory license does not require the consent of the owner it is much easier to obtain. 

I'm not sure what a synchronization license refers to. I never looked it up. I took it to mean you need to get a license if using part of the original song along with the original artists video but I don't know.  Seeing how you can't upload anything to youtube unless it is in video format then everyone would have to get a sync license, no?

Take this guy for example ... I can't believe he's contacting every copyright holder of every one of these songs he puts out video's for. And he puts out a lot. But maybe he does, I don't know.  Youtube is sending mixed signals on what is and isn't acceptable. For example the video I did that they took down, gave me a strike for, then put it back up and told me I could monetize it. I still have all the emails and the video is still there and can be set public with monetization. Not that I ever would.

I'm not going to worry about it either way.

Side note, I either read or watched a vid a while ago by a guy saying it's better not to copyright your own material now. I forget the reasoning behind it and if I can find it again I'll post a link to it. It made sense at the time when I saw it.

[slartabartfast]

A synchronization license is required whenever you are creating a video that uses someone else's musical composition. So if you make your own video or license someone else's video, and yourself perform someone else's song composition to act as part of the sound track, you need the original composer to provide you with a synchronization license to use the music composition. Otherwise you are infringing the composition (music and/or lyrics) rights of the composer of the music that you are recording. I you are the author of the song you are performing, then you, as the author, have rights to synchronize it, perform it, record it, rearrange it or create a derivative work (change music or lyrics) as part of your author's copyright. So, yes, everything posted to YouTube needs synchronization rights.  If you use any part of someone else's  video you need a license from the creator of the video to use his video, both as the video itself and as a derivative work because you have altered it by adding your audio, but that is not a synchronization right. If you use a recording of someone else's performance of a song that you authored, then you do not have to license the composition rights as a sync license, but you need a license to use the actual audio data of that recording, the master recording rights. So if you film your own video and use a few seconds of a pop record as background you do not need a license to publish the video but you do need a license from the authors of the words and music (synchronization rights) and another license to use the actual audio recording/phonorecord (master recording rights). Who owns the master rights depends on how the contract was set up prior to making the audio recording, but typically ends up in the hands of the recording company that released the song. It frequently happens that a performer does not own master rights to their own recording of their own composition and so cannot use  or  fully benefit from their own originally recorded voice performing their own composition without getting a license from the owner. Taylor Swift is notoriously facing this issue. 

To get to the farther end of reasons that music videos are copyright hell, consider that even if you film the video yourself, you may still have obstacles clearing the images in your video. The creator of a work of art has the sole right to create derivative works of that creation. When you photograph a piece of art (whether a single original or one of a licensed million copies) that photograph may be considered a derivative work of the original. So a picture of a smurf doll in your video might require permission from the owner of the smurf design copyright. Such issues rarely matter in cheap to free videos, but when big money is at stake it may. A potter friend of mine made a ceramic spoon rest that appeared just incidentally sitting on a stove in a scene in a major movie, and the producers contacted her for permission to use it in this way. 

https://www.easysonglicensing.com/pages/help/articles/music-licensing/what-is-a-synchronization-license.aspx

[Shane_B.]

On 2/15/2021 at 7:16 PM, slartabartfast said:

A synchronization license is required whenever you are creating a video that uses someone else's musical composition. So if you make your own video or license someone else's video, and yourself perform someone else's song composition to act as part of the sound track, you need the original composer to provide you with a synchronization license to use the music composition. Otherwise you are infringing the composition (music and/or lyrics) rights of the composer of the music that you are recording. I you are the author of the song you are performing, then you, as the author, have rights to synchronize it, perform it, record it, rearrange it or create a derivative work (change music or lyrics) as part of your author's copyright. So, yes, everything posted to YouTube needs synchronization rights.  If you use any part of someone else's  video you need a license from the creator of the video to use his video, both as the video itself and as a derivative work because you have altered it by adding your audio, but that is not a synchronization right. If you use a recording of someone else's performance of a song that you authored, then you do not have to license the composition rights as a sync license, but you need a license to use the actual audio data of that recording, the master recording rights. So if you film your own video and use a few seconds of a pop record as background you do not need a license to publish the video but you do need a license from the authors of the words and music (synchronization rights) and another license to use the actual audio recording/phonorecord (master recording rights). Who owns the master rights depends on how the contract was set up prior to making the audio recording, but typically ends up in the hands of the recording company that released the song. It frequently happens that a performer does not own master rights to their own recording of their own composition and so cannot use  or  fully benefit from their own originally recorded voice performing their own composition without getting a license from the owner. Taylor Swift is notoriously facing this issue. 

To get to the farther end of reasons that music videos are copyright hell, consider that even if you film the video yourself, you may still have obstacles clearing the images in your video. The creator of a work of art has the sole right to create derivative works of that creation. When you photograph a piece of art (whether a single original or one of a licensed million copies) that photograph may be considered a derivative work of the original. So a picture of a smurf doll in your video might require permission from the owner of the smurf design copyright. Such issues rarely matter in cheap to free videos, but when big money is at stake it may. A potter friend of mine made a ceramic spoon rest that appeared just incidentally sitting on a stove in a scene in a major movie, and the producers contacted her for permission to use it in this way. 

https://www.easysonglicensing.com/pages/help/articles/music-licensing/what-is-a-synchronization-license.aspx

Sorry, for some reason I missed your reply the other day.

Thanks for making that clear (ish) :). 

I can't make heads or tails out of any of it. There are an awful lot of people on YouTube making video covers. There is no way they are contacting everyone and getting permission. It's frustrating. I used a still picture of a fireplace in a bunch of Christmas songs I did. Some of them got flagged others didn't. Simon & Garfunkel songs don't get flagged but The Avett Brothers do. Which one has most people heard of? None of it makes sense, to me. Those examples I gave are all covers I've done and posted on YouTube as private. None of my S&G stuff gets flagged, but Avett Bro's do. And how can they tell me I can make public and monetize a vid of me playing the lead to Hotel California. None of it makes sense. I'm just going to go on like business as usual until they take my private channel down. 

[slartabartfast]

I expect the difference between what YouTube takes down and what they ignore is that the owners of the stuff that gets taken down have not bought into the deal with YouTube to claim and monetize the infringements. Many of the bigger publishers, who typically own the rights to the most popular songs are on board. They gave up trying to police their copyrights against a flood of infringement and have enough revenue from other sources so that they can pass on  harassing YouTube posters. Making a small fraction of what they would make on legitimate licensing is OK with them, since the cost to make the  income from YouTube is basically free. Your cover of one of their songs is not likely to result in listeners stopping listening to the original recordings. And if they have enough in their shared catalog, they can make a substantial amount of money and share very little with the composers who effectively use them to collect their royalties.

On the other hand, an independent composer, or small label,  would probably not make anything to speak of  to offset what they see themselves as losing by performances of their work streamed without their permission. Assuming that the takedowns are not initiated by copyright trolls attempting to extort money from performers they find infringing on YouTube, there are a variety of reasons someone might manually flag an incident. Maybe they just want to control how their work is presented, or hope that someone will pay them a significant amount for a highly successful viral video. And there are for-profit services that run YouTube and other websites through their own song identification robots paid by their client copyright owners to do this kind of policing.

I am sure most people who post covers do not do anything to secure the rights to the song or visuals. YouTube would simply not work if that was required. Most people who have looked at the issue advise to do exactly what you are suggesting--post what you want and let YouTube and those who own the copyrights catch and sometimes stop them. Unfortunately, the fact that is is unclear to the poster whether a particular work is covered by the agreement between YouTube and the publishers for any particular song makes getting too many strikes a real possibility.