A Myth: Cover Songs Are Copyright Fair Use

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Collectively, we mourn the tragic passing of one of the greatest musicians/performers of our time and one of the greatest guitarists of all time. Prince’s songs, especially “Purple Rain,” have been and continue to be performed endlessly by others. Cover songs are easily found on websites, such as YouTube.

YouTube, a social website for videos, is a popular place for posting cover songs. Are there copyright issues in such postings?

An Example

Your client has been posting YouTube videos of a string quartet playing pop music. The postings have created a following with views exceeding 300,000. Th en, without warning, the YouTube videos are removed by YouTube and the client’s account “deleted.”

The client finds out that a copyright “takedown” occurred and comes to you with questions and observations: Why me? These videos are fair use. No money was received and no commercial use intended. My YouTube postings are like cover songs and cover songs are fair use. Other similar postings exist. Why can other posts exist when mine gets taken down? How can you explain to your client that the notion that cover-songs-are-fair-use is a myth in view of this reality?

What’s a Cover?

A cover song or sometimes simply referred to as a “cover” is a new performance or recording by someone other than the original artist or composer of a previously recorded, commercially released song. Th ere are music purists who object to the use of “cover” since it once had a somewhat derogatory connotation. Th at derogatory connotation now appears to be gone and using the term “cover” allows you to efficiently describe “an old song being played by another artist.”

Fair Use

The Internet and in particular, social media sites that make content sharing easy, such as YouTube and Facebook, has caused additional confusion and blurring about what is copyright fair use. Th is is not to say that prior to the existence of social media, determining fair use was definitive in nature. It was not. However, the Internet has taken mythology to another level and so we are here fighting the good fight against copyright myths!

Whether a “work” is fair use is defined by statute and not feelings of “fairness.” Th ere have been many reasons put forth to show that copyright law has not kept pace with technology and why there should be more exceptions under the guise of fair use. Some of these reasons may have moral validity, but the law is still the law. Statutory copyright law, specifically 17 U.S.C. § 107, states in part that if a new work that copies content from a copyrighted work meets one of the following “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” then such action is not copyright infringement. In determining whether the copying of a copyrighted work is fair use, this statute lists the following factors as considerations:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

A “cover” is hard to place within this statutory definition. First, a “cover” is generally not criticism, comment, news reporting, teaching, scholarship or research. Second, in a cover substantially the entire song is being played. Th e use of the entire song is pertinent to the “purpose and character of the use,” which recent courts have said must be “transformative” in order to be “fair use.” Generally, it seems that “transformative” means to make the work something new. However, a cover by its definition is not transformative in nature. It is a replay and oft en a mimicking attempt at a commercially successful recording. Playing substantially the entire song goes against the fair use defense.

But wait, there are other copyright statutes! Copyright statutes 17 U.S.C. §§ 108 through 116 provide other “limitations on exclusive rights.” Technically, these statutes do not define “fair use;” they provide narrow exceptions to a copyright owner’s “exclusive rights” – none of which refer to a “cover” or its equivalent.

None of this legal discussion explains why some postings are taken down and others exist. Th e non-legal explanation is, however, rather simple. Many myths exist because they are supported by a misunderstood reality. For a YouTube posting to be taken down – someone just has to object. Th e existence of an otherwise copyright infringing video is allowed probably only because the copyright owner doesn’t know about it, doesn’t care, or has actually licensed the copyright.

As an end to this discussion you can view an excellent Purple Rain “cover” at https://www.youtube.com/watch?v=8w2lNpixqOc RIP Prince.

Z. Peter Sawick

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