In class, we have done some reading on parody and fair use. This got me thinking about cover songs, another popular vehicle for artists (especially of the up-and-coming variety.)
Many of us have friends who are in bands or are in bands ourselves, so we know that from a tribute to a song or band that has been influential to a reworked version of a popular song that leans more towards parody (an acoustic cover of TI’s “Whatever You Like” comes to mind), cover songs tend to become often-requested fan favorites.
So how legal is this, exactly? According to my internet sources, not at all. Here’s an excerpt from the Washington State University page regarding fair use and cover songs:
“The right to perform or play a song in public is one of the exclusive rights of the copyright holder. You will need to get permission or a license if you play music in public unless the music is in the Public Domain or the use of the music qualifies as fair use. But the line between what is private and what is public is complicated. Prior to the Music Licensing Act in 1998, some court cases have drawn the line and declared public uses of music to be copyright infringement unless licensed, as follows:
- Radio stations, bars, night clubs, and juke box operators;
- Hotels that play the radio for guests through speakers or headphones;
- Restaurants;
- Stores;
- Telephone intercom systems that play music while callers are on hold” (Source: http://publishing.wsu.edu/copyright/music.html)
So a tribute-style cover is definitely out; you need to seek permission before playing in a club, bar, or posting a video on Youtube. (Yes, videos evidently are pulled from Youtube all the time. And worse – if you aren’t scared by the thought of a slap on the wrist from Youtube, check out this link about a club owner who let bands play covers and had to pay $40,000 in damages: http://www.postindependent.com/article/20070503/AE/70503009)
But what about covers that slant more towards parody, or that have been reworked with original material from the band covering the song? Though it seems like it could fall under fair use, it is still risky, particularly since if you are covering the song, you are using most or all of the material. Rearranging the song or doing something like an acoustic cover is probably not enough to keep you out of trouble.
And evidently, even when you do seek out legal permission to cover a song, there still may be repercussions! Check out this story: http://www.out-law.com/page-8685 (Summary: Guitar Hero gets permission to cover a song by The Romantics, they claim it’s too similar to the original.)
Here is an opinion article on blogcritics.com that echoes my feelings on the issue, albeit with a bit more emotion:
“…suing a young band that writes their own songs for covering one, or even two, of your songs is just pointless. Again the common theme here has to be greed and it tarnishes everything the rock and roll ethic ever stood for.
But consider the fact that if you hear a cover song at a club you might like it enough to go out and buy the album. I think playing a cover is a tribute, much like a toast, and suing a band for doing it is like shooting yourself in the foot.” (Source: http://blogcritics.org/music/article/van-halen-and-led-zepplin-sue/)
In the meantime, um, be careful if you find yourself singing along to a song in a bar. You might get slapped with an infringement suit!
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I definitely agree with your opinion. Cover songs are not meant to take the original artist’s credits but are mostly sung because the cover artists appreciate the original songs.
To pull cover videos out of YouTube is a bit unfair. If I was a music artist and my fans were playing my song all over the internet-I would be thankful for the free promotion (albeit the cover artists mention the original artist’s name somewhere on the video).
Since this class began, I have been interested in the rules governing live cover bands’ performances as well. Apparently, bands are not responsible for the songs played, but rather, it is the club/venue owner that must pay yearly fees to ASCAP, SESAC, and BMI, the 3 major publishing companies. Club and bar owners also are responsible for paying those publishing companies to have jukeboxes in their venue.
As to your point about the song being a tribute, I completely agree. I wonder if this could be argued as a fair use case? I would contend that there is no market harm for the original artists by the live performance of a cover band. It’s not like people are going to choose to see the cover band and not the originals artists.
I really don’t get why the cover band isn’t responsible… so Lez Zeppelin can go around playing these songs and not get in trouble? Or did they have to obtain a license too in order to play?? That article really surprised me!
The basic answer is that the band is covered by a license, but not one they had to get. The venue generally will have an umbrella license with ASCAP, BMI, and maybe even SESAC, to exercise the performance right for all their compositions, which is a pretty comprehensive catalog, for anyone performing on the premises. Hopefully after Thursday’s class you guys can see why the venues would be worried about their own liability…
On further review, “what Anthony said”