Sara Alrehaili (she/her) Legal Intern Sara is a 2021 LLM graduate from Boston University School…
The COVID-19 pandemic has closed music venues across the country and many musicians are trying to find new ways to make music for their fans and connect with an audience. One of the most popular ways to do so is by performing cover songs and sharing them on social media sites, like YouTube. While this method is a great way to perform in a safe and socially distant manner, there are legal implications that arise from sharing music online that don’t arise from playing music live.
The following sections will use the technical terms (sound recording/musical work/audiovisual work) to describe songs and videos, which are helpful in understanding how copyright law treats such works.
Musical Copyright Basics
If you are making an audiovisual work that includes a cover of a musical work written by someone else, you have to ensure that you obtain the necessary rights to use that person’s (or people’s) musical work. When you perform in a music venue, the venue is responsible for obtaining such rights, and they can easily do so by getting blanket licenses from the various performance rights organizations (PROs, such as ASCAP, BMI, and SESAC). However, if you are making and posting the audiovisual work, you have to get such rights, and the nature of the rights you need to obtain can be more complicated given that you are making and sharing an audiovisual work, rather than just performing the musical work live.
For music, copyrights cover two aspects: the underlying musical work, and the sound recording of such musical work. For a cover video, you are making your own recording of such musical work, and so you won’t need to obtain rights to use the original recording (unless you are doing something like a playthrough video that uses the audio from the original sound recording). However, you will need to get rights to use the musical work for your audiovisual work, and there are several different types of rights you’ll need to get.
First, since you are making and distributing a recording of the musical work, you have to obtain what is called the “mechanical rights” to the musical work. While the law allows you to obtain a “compulsory license” to such rights without needing to get explicit permission from the owner, this process is difficult and often fluctuates. As a result, many artists will acquire the rights directly from the owner. Mechanical rights can typically be obtained from the Harry Fox Agency, which represents composers for this purpose. Also note that such rights to cover a musical work only allow limited arrangement of the music and doesn’t allow changes to “the basic melody or fundamental character of the work,” so further permission is needed to make substantial changes to the music.
Performance and Synchronization Rights
Second, if you are sharing an audiovisual work along with the recording of the musical work, you will need to get synchronization rights (for synchronizing the music with an audiovisual component) and performance rights (for publicly performing the music). Performance rights can be obtained from the relevant PRO, and such organizations tend to be easy to work with. However, there is no such rights-holding organization for synchronization rights, and so obtaining such rights requires tracking down the owner of the musical work copyright and negotiating terms of such license, which can be a lot more difficult.
This process of obtaining rights will be the same regardless of the style or genre of music you are covering. However, if you are covering an older musical work, you can look into whether the musical work has entered the public domain, and thus would not require any licenses to cover. Any musical works from before 1924 can be covered freely; for musical works after 1924, it may help to work with a lawyer to see if an older musical work has had its copyright lapse.
YouTube’s Copyright Enforcement Systems
This process of obtaining rights is necessary if you are hoping to use YouTube to make money (for example, through ads or sponsorship). However, for musicians who just want to use the platform to connect with an audience, they may find this process not necessary. YouTube is required by law to enable rights holders to remove infringing music, and they do so with both manual “copyright strikes” and with their automatic, data-driven Content ID system. However, if your video is manually or automatically flagged as infringing, it is up to the rights-holder to decide whether to take down the video or leave it up, frequently with ads that pay the rights-holder. You can try to dispute a claim or file a counter notification to challenge the strike or copyright claim (either because you have obtained the proper rights, or if you believe your usage of the copyrighted musical work is under fair use), but you can also accept it and use other means to build your brand and monetize it on YouTube.
So, what are the best ways to do take advantage of YouTube without jumping through the hoops of getting rights? You can try to use services like Patreon to have fans pay you directly without having to deal with ad revenue on YouTube. You can use your videos to drive fans to your music on other services, like Spotify or BandCamp (though you’ll still need to get mechanical licenses if you are selling or streaming the sound recordings of a cover song). You can also consider live stream services, like Twitch or Instagram Live, though it may be difficult to monetize such options without running into the same issues as on YouTube.
Copyright Protection for Your Work
Finally, what rights do you have to the sound recording and audiovisual work you recorded, and what do you need to protect them? To put it simply, you have automatic copyright to your musical work and audiovisual work at the moment when you finish recording them. However, you can do a few more things to protect your rights further. First, you should make sure you s keep an audio-only version of the piece to ensure you have rights to the sound recording separate from and in addition to the rights to the audiovisual work. Second, when posting the sound recording and/or the audiovisual work, you’ll want to state in the description that you are the owner of the audiovisual work and sound recording, by including a copyright notice (for example, “© Joe McClintock, 2020”). Finally, though it is not necessary, there are certain benefits to formally registering your sound recording and/or audiovisual work with the United States Copyright Office, and you can work with an attorney to have these registered.