Are you a singer who loves doing covers of your favorite songs? Do you enjoy playing them at live gigs, but aren´t sure whether it is allowed to actually record a cover and publish it on DSPs or upload a video of you singing it to Youtube?
Don´t worry. We will give a short overview on what to consider when recording and distributing a cover song. However, please let us disclose, that we are not legal advisors. The information hereunder is acquired by doing research and having been taught in online courses. If in doubt, we advise you to consult seek legal advice. That said, let´s dive in.
Understanding copyrights of a song
The first thing to understand are the copyrights of a song.
We have already posted a blogpost on copyrights and royalties (here), but let´s quickly recap.
Once a songwriter (or a team of songwriters) writes a song, it is immediately copyrighted by the nature of them being the creator of the song. The copyright of a song contains two halves so to say. 50 % of the copyright is assigned to the songwriter (writer´s share) and 50 % of the copyright is a assigned to the publisher of the song (publisher´s share). Now mind this. As long as a songwriter isn’t working with a professional publisher, the publisher´s share automatically goes to the songwriter (the creator of the song). That said a songwriter usually owns 100 % of the copyright, unless they decide to hire a publisher (other than themselves) and then giving away the 50% share.
See the graphic below. Keep in mind, the songwriter and the publisher could be one and the same person, or not.
If there´s various songwriter´s involved, say a song was written by two writers, then they share the copyright. If they decide to shar ein equal parts, then both writers get 50 %. However, if they hire a publisher, they have to share their 50% with their publisher. Meaning each songwriter would get 25% and each publisher 25%. 25% x 4 = 100 %. If there´s three writer´s the 100 % get divided by three.
Why are copyrights important?
Well, they are the basis by which a songwriter and their publisher (let´s call them songwriter/publisher entity) get paid their royalties.
Depending on whether the song is released as a sound recording and is being streamed on DSPs or played on the radio or sold as physical copies (mp3, CD, etc.) or whether they are performed live or being synched to moving picture, there are various royalties in place.
The songwriting/publishing entity are basically paid for each publish performance (this includes live gigs, radio play and streams) as well as for “sales” of sound recordings of their song (this goes for CD/Vinyl/tape sales, on demand streaming, downloads of songs).
The first sort of royalty is a public performance royalty, the second one is a mechanical (or in case of on demand streaming, a digital mechanical )royalty.
So far so good.
You may wonder. Am I allowed to record my own version of such a “copyrighted” song.
The answer is: Yes! But there´s things to consider. Read below:
Recording a cover song
The good news is. Anyone is allowed to record a cover song. The songwriter is not allowed to prohibit it, unless no sound recording of the song has been released before. In other words, the songwriter gets to chose who (including themselves) gets the right of first distribution.
You might think: Of course! How could I record a “cover” of a song that isn´t out there yet.
But keep in mind, that some songwriters play their original songs on stage in live settings. Covering and distributing a sound recording of those might get you in trouble.
So, in short: You can cover any song that is on the DSPs, on the radio or on a CD or vinyl etc. Any song that has been released.
However, despite the fact that you are allowed to cover said songs, you do have to pay a certain royalty to the copyright owner (the songwriting/publishing entity), if you decide to release it on CD, vinyl or for on demand streaming services.
Why is that? As soon as you make money from downloads or physical sales, the copyright owners are entitled to a fee of 9, 1 cents per download. This is the so called mechanical royalties that is in place for songwriters. It is a way to compensate songwriters for their creations. Think of it: A songwriter might not be a performing artist. They might write songs for other artists. Now, the artist goes to release the song. Would it be fair for the artist to make all the money? No. The songwriter delivered the song. So they should be granted a fee of all sales as well. And that is exactely what´s the case with cover songs. You are an artist. You use their song and make money from it. So, naturally, the songwriter gets a share.
In the United States Harry Fox Agency collects and distributes mechanical royalties on behalf of the songwriters/publishers. The MLC collects and distributes so called digital mechanical royalties (that is on demand streams).
Now, how to make sure the songwriter gets paid?
The good news is, that most digital distributors (e.g. Distrokid, CD Baby etc. actually handle the admin side of this for you, if you decide to release a cover song.
What if I change the lyrics or the melody?
Well, bad news is. If you decide to change the melody or lyrics of a song you cover, it is no longer a cover. Instead it is then called a “deriviative work”.
Sadly, there are different rules in place if you decide to create a deriviative.
First off, you need the songwriter´s permission to release it. Secondly, you need to register it as a “new” work with your PRO. On the upside, that will also grant you parts of the songwriting credits.
Is there anything that´s not allowed?
Generally, you are not allowed to pitch your cover song for synch if you have not been given the permission of the publisher to do so beforehand. This is important to understand. A copyright owner cannot keep you from recording and distributing an audio cover of their song, but they CAN keep you from monetizing this sound recording via “synch” placements. The song copyright owner AND the master recording owner both have to grant a license (a synch license and a master use license) to whoever wants to place the song in a video.
Since you, as a cover artist, are not the owner of the copyright in the composition, (but only of YOUR master recording, that is your version of the song), you cannot grant anyone a synch license. You can only grant the license for use of your master. That isn´t enough though.
Now, what about Youtube?
Mind this: Technically (meaning according to the law) this would require a synch license. As soon as you add video to a sound recording, you do need a synch license and a master use license . Youtube creator videos are no exception to this rule!
As mentioned, this license is granted through the song publisher and usually costs some money.
However, there is a bit of a workaround. Youtube has their own terms in place and here´s what you need to know if you still want to release a cover on youtube:
Youtube generally offer copyright owners the option to collect royalties for use of their works in videos by ways of monetizing the videos with ad placements. A copyright owner can make such a claim and as a consequence Youtube will place an ad before or during the video and forward parts of the revenue to the copyright owner. That is their way of sorting out a synch license.
If your account does not have 1000 followers and over 4000 hours of watch time, you as a video maker are not eligible for monetization. If you are set up for monetization then youtube will place ads in front of your videos and share the revenue with you (and possible copyright owners other than yourself as well). If you use copyrighted work on your videos without permission from the copyright owner though, the copyright owner might just ask youtube to take the video down (choosing not to monetize, but simply prohibiting the use of their work (aka, not granting a synch license)). This might get you in trouble, as Youtube will impose a strike against you. They will deal with the copyright infringement, but the strike is like a big red flag you need to take seriously. If you receive 3 strikes, your channel and all your videos might get deleted. So this is something to watch out for!
If your account is not set up for monetization, then chances are you will probably not be given a strike too quickly.
Be aware, that uploading a cover to youtube without the permission of the copyright owner ( in this case a sync license) does come with a certain risk though, especially if your account is set up for monetization.
However, a lot of copyright owners actually allow for people to cover their songs on Youtube, as it helps market the song. So, it is up to you chose which risks are worth taking. If you want to be safe, it is recommendable to contact the publisher and ask for a permission prior to uploading your video. Needless to say that this is always the best option!
(Disclaimer: The information on Youtube was collected through the Youtube terms of service site and then simplified for purpose of gaining an overall understanding. You can read through the details here.).
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