The State of the Cover Address, 2010

By Chris Moore:

Greetings, my fellow musicians and music lovers.  I come before you tonight in the form of an actual blog post, airing my thoughts and feelings for the Internet to read.  Take them for what they are.

Ever since Jeff’s Eagles cover songs posted on YouTube were tagged for copyright infringement, I’ve been increasingly interested — and concerned — about the state of the acoustic cover song.  Now that I’ve been hit for alleged infringement by corporate superpower Sony Music, I find myself having a personal stake in this debate:

Should it be — and, perhaps a more pressing question: is it — illegal to post acoustic cover song music videos on YouTube?

I’d like to start at the beginning.  A cover song is a performance by one singer/musician of another songwriter’s composition.  For as long as there has been music, there have been covers.  It is through cover songs that we learn how to play guitar, not to mention how we feel out our own songwriting styles and preferences.  Cover songs provide an avenue for us to explore our influences in a very personal manner, as we must take in every nuance from the original performance, decide which work for us and which do not, and attempt to recreate the song in a way that is fitting to our own abilities.

Finally — and this is where the legality of it all comes in — cover songs are what listeners are often interested in before they listen to the original music of a new songwriter.

The members of the Laptop Sessions music blog have spent countless hours preparing for and playing shows at bars, restaurants, fairs, and other venues at which we would have loved to play all original music.  However, most promoters and managers required that we bring songs that were more well-known to their customers.  Thus, we set out to learn some of our favorite rock songs — the standards, in most cases, from mainstays like the Beatles, Beach Boys, Bob Dylan, and others.  Although we made money here or there, even this was never for profit.  Over the years, considerably more money has gone into these ventures than we have ever seen in return.

No, and perhaps this is a point that multi-million dollar attractions like the Eagles and Bob Dylan have forgotten, the point was never to make money.  The point was to perform in front of an audience, to have our music heard, and to practice with the intent to become better musicians, songwriters, and performers.  This desire naturally progressed into Jim’s conception and development of the Fusco-Moore blog, better known now as the Laptop Sessions acoustic cover song music video blog.  Week after week since its 2007 inception, the Laptop Sessions performers have chosen songs that they loved, practiced them tirelessly, run through multiple performances until a satisfactory recording could be captured, and posted a textual component to augment the video, explaining trivia about the song, as well as commenting on the quality of the song (such as why we feel it has been underrated, forgotten, honored for good reason, etc.).

The point is that our cover songs have been labors of love.

(At this point, I will highlight the fact that I speak only for myself by switching to the first person singular, but I do believe the other contributors would agree, at least to a degree.)

Although I hoped that people would naturally gravitate toward my original music if they liked my cover song performances, it was never a necessary component.  I haven’t sold even one track since I started contributing to the Laptop Sessions 192 original and cover song music videos ago: if profit were my intention, I would have stopped months and probably years ago.

These cover song performances have allowed me to study a variety of songwriting styles at close range, artists as wide-ranging as Bob Dylan to Pearl Jam, Tegan and Sara to the Lovin’ Spoonful, and even, most recently, Pink.  The experiences I’ve had have fueled my commentary and criticism in my blog posts, as well as the direction my interests have gone, most directly affecting the CD’s I buy (yes, corporate music labels, we are among the few people still buying music in legal CD and vinyl formats on a very regular basis).

Which brings me back to the present.  Last week, I was hit with a copyright infringement notice from YouTube that was brought against me by Sony Music on behalf of Bob Dylan.  Why my cover of “Love Minus Zero/No Limit” was chosen among my other Dylan covers, I can’t be certain, but I’m sure that more allegations are on the way.  It would appear that my only recourse is to file an official DMCA counter-notification.  Before I do this (and sign my name to the promise that “I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which YouTube is located, and will accept service of process from the claimant.”), I want to be certain of what the law states.  While I agree with Jim’s reading of the fair use provision in Section 107 of the Copyright Act of 1976, I have also found legal forums where members disagree with our reading and proclaim cover song music videos to be a violation of copyright.

My correspondence with the YouTube Copyright Team has thus far only yielded a reply in which they simply copied and pasted text from their FAQ section, but I have restated my email to be clearer.

Essentially, I want to know (and have asked) if acoustic cover song music videos posted for non-profit, personal use on YouTube are in fact illegal.

When I receive a reply, I will add it here.

Until then, I am left frustrated by the irony of Bob Dylan — Sony Music, technically, but in the name of Bob Dylan — attempting to intimidate me out of posting cover songs on YouTube.  This is the same Dylan who earned a living, albeit a meager one, playing covers in Greenwich Village in the early sixties.  This is the same Dylan accused in the interviews of multiple friends from that period of literally stealing music, lifting vinyl from various people’s collections.  This is the same Dylan who has built his early respect and his contemporary catalog on the foundations of the music of the past.

Why has he not been shunned, brought to court, or otherwise attacked?  Because anyone who cares to look more closely at these aspects knows he has undertaken each of these actions in the name of honing his craft, experiencing and adding to his influences, and continuing to create thought-provoking, entertaining performances.

He is my acoustic, folk, rock, and just plain music role model, and frankly I am left with a sour feeling in the pit of my stomach as I obsessively review the censure I have received from YouTube, staring at my hundreds of dollars of Dylan music and merchandise and wondering how such an insignificant figure in the music industry as myself could be perceived as such a threat, such a criminal, by the establishment.

I await an answer from YouTube.

This is one in a series of acoustic cover songs, original music, and free mp3 downloads here on the Laptop Sessions Music Video Blog.

8 thoughts on “The State of the Cover Address, 2010

  1. As I predicted, YouTube has informed me that Sony Music has flagged me for additional copyright infringement, yet their Copyright Team has not responded to me. I continue to await their response to my inquiry.

  2. Could this be resolved by some properly worded disclaimer to be placed in the YouTube write-up/description blurb of the covers? Like “this recording is intended for entertainment and educational purposes only. No personal profit is intended or gained. All musical and lyrical rights belong to the respective artist(s) and labels”

    I usually watch the videos straight from the blog, and not from YouTube, so I’m not sure if you guys already have something like that done. :) Can you tell I enjoyed my elective law classes too much?

    Btw, I wouldn’t waste my time to properly capitalize YouTube, iPhone’s doing it. YouTube wouldn’t exist if not for such videos like the ones from laptopsessions. It’s unfair for your videos to be targeted, but it’s ok for people to do mass dances to Thriller and be put on the news, or little asian children singing “hey Jude”,right?

  3. You know, I have considered recording more cover videos for the site in the past few days because things are settling down at home, but things like this make me really rethink. Why all of a sudden are big time music corporations going after cover videos?

    I was peeved when I got a notice about one of my Eagles’ videos, but thanks to Jim’s blurb about the Fair use act, I sent a counter notification and Youtube reinstated the video.

    However, I got ANOTHER copyright notice from the same company about another Eagles video! So I sent the same counter notification to Youtube.

    But this time, I got an email directly from someone claiming to be a Lawyer who represents the Eagles. It goes:

    “Dear Mr. Copperthite:

    I represent Don Henley and Glenn Frey, the owners of the musical composition embodied in your video.

    I wanted to respond personally to you to explain why we flagged your (and many, many other) video. Please bear with me while I try to clarify the basics of copyright law and the notion of “fair use” so that you can more fully understand that my clients are merely protecting their rights under US Copyright Law.

    First, there are two distinct and separate copyrights when most people think of a song — there is a copyright in the song itself (the lyrics, the melody, the arrangements and well known riffs and structures), and then there is a copyright in the sound recording made of that song (also called a “master recording”). We understand that you did not use the Eagles’ version of the song but your own cover version in your video. While you would not be infringing on the sound recording copyright, a cover version of the song by you embodied in a video and posted on a site, does infringe the copyright of the song.

    Copyright owners hold certain exclusive rights in their copyrights, one of which is the right to license or not license what is called a “synchronization” use (i.e., the right to “sync” the audio to a visual image). You are required by law to secure such a license and, if granted, pay a fee set by the copyright owner for the synchronization right. Additionally, there is the right of public performance, which is usually licensed on a copyright owner’s behalf by the public performance society (ASCAP, BMI or SESAC in the US) for website use and for play in public places such as bars, taverns, auditoriums, concert venues, etc.

    All of the above is how copyright owners like my clients make their living. I suppose the best analogy to illustrate all this is to liken it to someone taking your car, using all of the gas in the tank and not only not getting your permission for it, but also not reimbursing you for the car rental, the gas and the mileage.

    Insofar as “fair use” is determined, the only real exemptions under the law for “fair use” would be educational (meaning, scholastic use in education settings like schools and libraries and/or textbooks) and satirical uses which comment on the song itself (not just making up new lyrics to the existing melody). Even though you are not charging money, you are using my clients’ property to promote yourself, and that would be a criteria considered to be out of the scope of “fair use.” Cover versions are not considered “fair use,” and certainly creating an audio-visual production with a cover version falls completely outside the definition of “fair use.” This also applies to cell phone video shot at concerts.

    Now that you hopefully understand why your video was flagged, we ask that you remove it from YouTube and any other site on which it may be posted. We understand that people like you are not intentionally infringing copyrights, but we hope by sending you this explanation of how it works, you will view this as an amicable and reasonable request by my clients and honor their wishes. If YT reinstates the video, we will flag it again, which may result in YT deleting your account as a repeat infringer.

    Should you have any further questions, I have copied the Eagles’ attorney on this email, and between us, should you need any further clarification, we can answer them.

    Thank you for your anticipated cooperation.

    Sincerely,

    Lisa Thomas

    Lisa Thomas Music Services, LLC”

    Interpret it as you will. I mean look, if they don’t want to watch other people playing their music so be it. But really seems like they’re struggling to make a valid claim.

  4. How does this comparison make any sense?:

    “All of the above is how copyright owners like my clients make their living. I suppose the best analogy to illustrate all this is to liken it to someone taking your car, using all of the gas in the tank and not only not getting your permission for it, but also not reimbursing you for the car rental, the gas and the mileage. ”

    This is neither theft nor plagiarism. We, like hundreds of other fans of music, are making video recordings of our favorite songs (live takes in mediocre quality for the most part) to feature in our posts celebrating those aforementioned “master recordings.” It is only through the translation process to acoustic guitars and our own performances of the songs that we are able to develop a commentary and study of each song at close range.

    First thing I’m going to do when I go home is burn my Eagles music. No, I don’t mean make illegal copies. I’m talking about a christening ceremony for my fireplace!

  5. Sarah, to respond to your post, I agree with you that this seems like a reasonable solution. However, from the research I’ve been doing the past couple days (almost 3 hours last night alone), these sorts of disclaimers aren’t fix-alls. One forum contributor argues, “I see many people thinking that they can get away with it if they write something like, ‘I do not own this material,’ but that’s really a confession that they’ve stolen it.” He’s referring to use of actual tracks, but the same idea seems to apply.

    Oh, and I read that those videos that are left online are actually allowed to remain if they profit the labels (i.e. in the form of advertisements on the video page, access to statistics on the video and blogs that embed it to aid them in research listening trends, etc.). Because the corporations don’t view us as profitable, we are targeted.

    Thank you for sounding your support — it was starting to feel really lonely and bleak around here!

  6. Am I the only one not scared of his shadow here? First, there are NO legal ramifications to this AT ALL. If YouTube allows our videos on their site, THEY take legal responsibility, not us. Just because we put it on there, it’s YouTube’s responsibility at that point. We could put videos of us burning babies to the original recording of “American Pie” and no one could do ANYTHING TO US.

    If this lady is representing Don Henley and that other guy, which she isn’t, how come she then says she’s going to “copy the Eagles’ attorney”? Why would she need to if she had any clout with THE FRIGGIN’ SONGWRITERS!?!?! The Eagles, as a band, have no ownership over the writing of the song, which is the only possible thing you could be “infringing” on, given her letter. Bottom line: she doesn’t have a leg to stand on.

    This is just like any other instance where people have tried to push us around in the past (remember the claim that we couldn’t own WCJM.com?). Now, this is the last I want to hear about this- grow a freakin’ set and fight back.

    I have almost 600,000 views and have done Eagles songs, Dylan songs, etc. with even more exposure than anyone else here. Yet, I haven’t gotten notices on ANY of my cover songs. The only notice I got was when I actually used the original recording of a song…AND I BEAT THAT, TOO.

    Bring it, YouTube- I’ll host the videos myself if I have to.

  7. Good news! As promised, I’ve posted the reply I just received from YouTube below:

    “Dear Chris,

    Thank you for your notification. It appears that the claims causing your
    videos to be rejected have been retracted. The videos are now available on
    the site. Please let us know if you have any further issues.

    Thanks again!

    Sincerely,

    The YouTube Team”

  8. Two weeks later, I just got a new infringement claim from YouTube for my “All Along the Watchtower” cover. I re-sent a copy of my original counter-notification with the new URL, in addition to a statement noting, in addition to other aspects, that my question has never been answered:

    Is it illegal to upload acoustic cover songs to YouTube that are recorded for non-profit, personal use?

    I’ll comment again when I get a response. (And that’s all I’m asking for: a direct response. Is that really so much to ask?)

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