Question on YouTube copyright claim

[Robert Bone]

Howdy - I did a cover of a Dixie Dregs tune, called Night Meets Light, and several years ago, posted it to YouTube.

In my video, I scrolled through a bunch of public domain pictures of the various Dregs band members, changing the pictures every 5 seconds as the song played.

SOOOO - either Steve Morse or his management/label put a copyright claim against my video, and that has me wondering - if I record myself playing someone's song, like I did here, why would that be considered a copyright violation?

I used ZERO part of the original recording by the Dregs - every last note in my cover, was played by me, for most of the tracks, and a friend of mine, who played only the guitar tracks.  (I covered drums, bass, keys, and violin, using soft synths).

If I perform someone's song, where I am not pursuing making any money off of it, am I still violating copyright laws?

I hope someone can give me a good response on this.

Here is the link to the cover of Night Meets Light, in case anyone wants to listen to it.  It is quite a complex song, due to numerous, and sneaky, meter changes).  The song is beautiful, and there is a bass and guitar unison section in the middle, that is flat out brilliant.

Thanks, Bob Bone

 

[Gswitz]

Usually titles draw copy right claims to low view count videos.

Yes, playing a cover exposes you to claims.

It doesn't matter if you get a claim unless you are trying to get paid or they take it down.

[Byron Dickens]

Copyright violation has nothing to do with whether or not you make (or attempt to make) money off it.

A copyright claim on YouTube only means that someone claims to own the copyright. That in itself is not that big a deal.

[Shane_B.]

Copyright claims on youtube are common. In my experience they simply mean that if you try to set the video so you receive ad revenue youtube will give it to the copyright holder. That's why people do not monetize and ask for donations instead. 

50% of mine have copyright claims so if I ever monetize the video the copyright holder gets the money. I had 1 strike and takedown. I contested it and said it was a cover and they put the video back up and said I could monetize it. Still scratching my head over that one. It was a video of me playing the lead to Hotel California.

[slartabartfast]

22 hours ago, Robert Bone said:

In my video, I scrolled through a bunch of public domain pictures of the various Dregs band members

How do you know that the pictures are public domain?  In the US any picture of a living person (technically any picture made by the photographer for his lifetime plus 70 years) should be assumed to be under copyright. For works for hire owned by a non-human legal entity like a corporation,  created after 1978 the copyright lasts 95 years from publication or 120 years from creation. It is actually very difficult for the author to put anything into the public domain per se. Copyright automatically attaches as soon as a work is created in tangible form, with a few exceptions like certain works made by or for  the federal government. That copyright survives the author, and can be licensed,  sold, inherited or seized as part of a legal action--so even if the author wants to give it away, he may not have that right. That implies that the author may not even be able to immunize you from a infringement action if someone else has assumed  control of the copyright. Unless you have a license from the copyright holder, or the work has some kind of universal license like the Creative Commons licenses, it is likely infringement to use it. 

Performance/recording  of a copyrighted work requires a license from the owners of the composition (word and lyrics) rights which can be obtained without specific consent of the copyright holder under the compulsory licensing provisions for sound recordings, but setting the music to  a video requires a specific synchronization rights license.  YouTube has a system for dealing with infringing music that involves deals with the various copyright holders, that they will not insist on the removal of the video from YouTube in exchange for a portion of revenue from advertising associated with  the video by YouTube. If the copyright owner is not participating in that deal, then YouTube can get a takedown notice and be required to remove it. The person who posts the infringing video is liable to infringement action by the copyright owner in that case as well. 

YouTube has robot song identification that will pick up musical infringement, but I doubt they have the same for images that you use, and I am not aware of any deal they have with the owners of pirated pictures or video. 

When you are dealing with the likeness of a person, especially one who is famous, you open a whole new can of worms. The use of the picture of a person, and even in some cases attributes that are easily recognized as being associated with that person you may be violating the person's exploitable right to his identity. That is not a copyright issue but a whole separate area of law that is defined differently in different states. If the subject of a photograph has limited the use of the photo in the photographic release, he may have an action against someone using the photograph outside the bounds of that release. So if the band member agreed to sit for the photograph for the sole specific purpose of it being used on an album cover, for example, he may have a case against someone using that photo on a box of cereal or in a YouTube video. 

Edited March 7, 2021 by slartabartfast

[Brian Walton]

9 minutes ago, slartabartfast said:

How do you know that the pictures are public domain?  In the US any picture of a living person (technically any picture made by the photographer for his lifetime plus 70 years) should be assumed to be under copyright. For works for hire owned by a non-human legal entity like a corporation,  created after 1978 the copyright lasts 95 years from publication or 120 years from creation. It is actually very difficult for the author to put anything into the public domain per se. Copyright automatically attaches as soon as a work is created in tangible form, with a few exceptions like certain works made by or for  the federal government. That copyright survives the author, and can be licensed,  sold, inherited or seized as part of a legal action--so even if the author wants to give it away, he may not have that right. That implies that the author may not even be able to immunize you from a infringement action if someone else has assumed  control of the copyright. Unless you have a license from the copyright holder, or the work has some kind of universal license like the Creative Commons licenses, it is likely infringement to use it. 

Performance/recording  of a copyrighted work requires a license from the owners of the composition (word and lyrics) rights which can be obtained without specific consent of the copyright holder under the compulsory licensing provisions for sound recordings, but setting the music to  a video requires a specific synchronization rights license.  YouTube has a system for dealing with infringing music that involves deals with the various copyright holders, that they will not insist on the removal of the video from YouTube in exchange for a portion of revenue from advertising associated with  the video by YouTube. If the copyright owner is not participating in that deal, then YouTube can get a takedown notice and be required to remove it. The person who posts the infringing video is liable to infringement action by the copyright owner in that case as well. 

YouTube has robot song identification that will pick up musical infringement, but I doubt they have the same for images that you use, and I am not aware of any deal they have with the owners of pirated pictures or video. 

All of this.

 

[craigb]

I still believe Slartabarfast is a lawyer or was one in a prior life! ?

[Robert Bone]

I had no idea, and never thought about it, as we weren't trying to do anything but measure our music performance and production skills, celebrating a beautiful song by a fantastic band.

The Copyright Claim on our cover version did not ask/require us to take the video down - it only indicates that we would not be eligible to make any money through YouTube views (which we never sought to do - quite the opposite, as booking the time in one of the largest studios in Chicago, for the mixing (they have insane outboard gear), was not cheap - I sprung several thousand dollars on the mix/master process, trying to bring the best gear available to bear on the project. 

To date, we have around 1,400 views, and quite a few of those are from Mike and I, just circling back to hear it, and to look for and respond to any posted comments (there haven't been many, but we want to make sure we are timely in replying to anybody who took the time to listen to the song, and also took the time to comment on it.

We also included text and links in the video description, encouraging folks to support the recording band, the Dixie Dregs, by purchasing their albums and songs, with direct links to where folks could do just that.  Here is a screenshot of the relevant text from our video description:

Bob Bone

[Brian Walton]

4 hours ago, Robert Bone said:

I had no idea, and never thought about it, as we weren't trying to do anything but measure our music performance and production skills, celebrating a beautiful song by a fantastic band.

The Copyright Claim on our cover version did not ask/require us to take the video down - it only indicates that we would not be eligible to make any money through YouTube views (which we never sought to do - quite the opposite, as booking the time in one of the largest studios in Chicago, for the mixing (they have insane outboard gear), was not cheap - I sprung several thousand dollars on the mix/master process, trying to bring the best gear available to bear on the project. 

To date, we have around 1,400 views, and quite a few of those are from Mike and I, just circling back to hear it, and to look for and respond to any posted comments (there haven't been many, but we want to make sure we are timely in replying to anybody who took the time to listen to the song, and also took the time to comment on it.

We also included text and links in the video description, encouraging folks to support the recording band, the Dixie Dregs, by purchasing their albums and songs, with direct links to where folks could do just that.  Here is a screenshot of the relevant text from our video description:

Bob Bone

With Youtube, this was likley an automated process.  It isn't an infraction they sent you, but simply notification that you do not have the copywrite to that song (you clearly didn't write it), and therefore you can't monitize the video.  The copywrite owner can monitize your video (though with next to no views on it, they are not even going to be making a single $1 on it.

 

You can basically ignore those notifications, but perhpas think about what you want out of these projects.  I can't fathom spending thousands of dollars on convering someone-else's music in a way that I couldn't at least post on the internet without someone else running ads on it.

[Robert Bone]

2 hours ago, Brian Walton said:

With Youtube, this was likley an automated process.  It isn't an infraction they sent you, but simply notification that you do not have the copywrite to that song (you clearly didn't write it), and therefore you can't monitize the video.  The copywrite owner can monitize your video (though with next to no views on it, they are not even going to be making a single $1 on it.

 

You can basically ignore those notifications, but perhpas think about what you want out of these projects.  I can't fathom spending thousands of dollars on convering someone-else's music in a way that I couldn't at least post on the internet without someone else running ads on it.

Thanks - it was a labor of love - and a one-shot type of project.  I completely agree on the notion of not wanting to pour a bunch of money into a mix, for a cover song, and I could have skipped the studio mix and done it in the box at home - just chose to do that for the outboard gear that particular studio had.

To do that, was like my gift to myself, and my friend.

I mix most everything in the box, at home, so outside of that one song, the issue will likely not repeat itself, unless I feel like treating myself again, at some point.

Bob Bone

 

[Vernon Barnes]

English folk musician John Spires organises his "Isolation Pub Sessions" with musicians from all over contributing remotely on traditional tunes. The results go on YouTube. He gets plagued with copyright disputes on traditional tunes dating back 100s of years.

[slartabartfast]

20 hours ago, Vernon Barnes said:

English folk musician John Spires organises his "Isolation Pub Sessions" with musicians from all over contributing remotely on traditional tunes. The results go on YouTube. He gets plagued with copyright disputes on traditional tunes dating back 100s of years.

I am not very well informed about British copyright law, but to the extent it is similar to the US:

This is an interesting problem that is not always due to a false claim. When a work is in the public domain because the author died centuries ago, it does not preclude a contemporary composer from creating and copyrighting a new work based on the original. What he must show, in order to claim his own copyright for the derivative work, is that what he has created based on the historic version is sufficiently original that it qualifies. The bar for that originality is not particularly high. An exact copy or performance of an ancient text would almost certainly not meet the test, or the mere transposition to another key. The creation of a new arrangement or orchestration would give the arranger a copyright on the arrangement, but not on the original song. Most commonly this becomes an issue when a contemporary "folk singer" records an old song. Rarely do such performances exactly follow some easily identifiable composition from an old text. There may be additional verses, melodic changes, updating of the language etc. That potentially creates a new copyright for the altered version. Covers of the new version thus may require a performance license, and changes that incorporate significant aspects of the new version may need a license to create derivative works of that new version. Publishers of the new version are likely to want to be paid if a subsequent version is substantially similar to what they have copyrighted. So unless you found your copy of the original song with a publication date old enough to put it in the public domain, and your rendition does not take any new material from a more recent version, you may find your work accused of infringement. 

An interesting conundrum, to which I have not found a convincing answer, is what happens when a collector just records someone else performing a folk song, and publishes a transcription of the performance. The phonorecord is clearly copyrighted since it is a contemporary work, although the ownership of those rights would depend on the agreement with the performer. Usually the transcriber is at pains to say that he is NOT the author or the work. After all it is being presented as a folk song. By a similar argument, the performer typically claims not to have written the old song , but to have heard it from another performer in the past--making him a collector in his own right. The publisher or author of a book of such transcriptions will often as not claim copyright to the songs therein, although it looks like his only contribution is to the arrangement and production of the various works--the book but not the songs it includes. It is hard for me to see how anyone in this scenario is an author who has a legitimate right to claim infringement of the composition.

Of course it costs very little for a copyright troll to send a cease and desist letter or demand payment, and most people doing folk music are in a poor position to defend an expensive infringement lawsuit.

[Bruno de Souza Lino]

On 3/8/2021 at 2:52 PM, Brian Walton said:

With Youtube, this was likley an automated process.  It isn't an infraction they sent you, but simply notification that you do not have the copywrite to that song (you clearly didn't write it), and therefore you can't monitize the video.  The copywrite owner can monitize your video (though with next to no views on it, they are not even going to be making a single $1 on it.

Almost everything pertaining to claim checking is automated. Small fry like you and me don't get human eyeballs to check for erroneous claims. You have to be in the millions of subs area (that often grants you access to a person inside YouTube HQ you can talk to) and generate enough pushback with your fanbase for stuff to be solved. Even the support emails are automated. When you ask for a re-verification, they simply run the video through the same algorithm that blocked it again. When someone claims your work, your refute is a message to the person that filled them claim, not Google or YouTube. If that person did the claim with nefarious intent, guess the odds of you getting it removed.

The most you can do to mitigate that scenario is abuse the system so you get a deadlock where no one receives money from those claims, as multiple sources need to argue on how to split the earnings.