Everybody loves music, and with incredible advances in media tech, making your music has become relatively easy. Likewise, variations of original songs are massively proliferated on social media– even monetized. One of such variations is recording of covers which has become common practice in the music industry, and has only recently become more popular particularly with the rise of YouTube. Although this readily ingrains a culture and exchange of creativity, it has subtly indorsed a theft of creativity. So, while you prepare to make your own cover of that song, it won’t hurt to acquaint yourself with some titbits in this respect, right?
WHAT IS A COVER?
A “cover” is the subsequent recording or performance of a song by a person other than the original artiste. The persistent increase in cover songs popularity each year proves that recording and uploading cover songs are a fun and relatively inexpensive way to further your musical career and get into limelight. It is also a channel through which classical tracks are brought back to life, and create an awareness of the original song. John Denver’s 1971 ‘Take Me Home, Country Roads’ comes to mind. It was not until the late 2017 that the song came back to limelight after Merlin’s Cover of the Song in the movie ‘Kingsman; Golden Circle’ spurred serious catharses in its fandom. The song has been said to be best part of the movie; in other words, the song drove customer appeal and, of course, popularity and more money. Interesting as this sounds, Denver’s song, a folk anthem, is a work of intellectual property protected by copyright. Safe to say, the producers of ‘Kingsman’ acquired license before the making or release of the song.
A copyright holder in a track has the exclusive right to publicly sell, distribute and license a sound recording or song. Therefore, to properly monetize and publicly distribute a cover song, the covering artist must receive a license, which is the right to utilize the work, from the copyright holder(s) in the work.
Now, these licenses may be a mechanical license and/or a synchronization license, known as a “synch” license.
A mechanical license from the original composition’s rights holder(s) is required for a cover song that is not paired with an audio-visual work. It is a compulsory license which means it may be given to anyone willing to pay the established statutory royalty rate. The statutory royalty rate may be determined by the relevant copyright authorities in each jurisdiction. In Nigeria, the Copyright Society of Nigeria is the relevant authority. The license provides the licensee with the right to reproduce, distribute and/or publicly sell a protected work on CDs, vinyl, and/or as MP3 downloads. To therefore sell a cover on iTunes, a mechanical license is needed.
A “synch” license is necessary if an artist wishes to display a cover song with a visual work, such as in a motion picture, a television show, or a video or computer game. It is not a compulsory license, it is not determined by willingness to pay royalty or not but by agreement with the copyright holder of the composition, the music publisher or an authorized agent. Thus, the owner reserves the right to grant the license to another party or not, as well as determine the license fee and any other restrictions they wish to impose on the subsequent recording. A popular example is Kina Grannis’s cover of Elvis Presley’s “Can’t Help Falling in Love” in ‘Crazy Rich Asians’.
There is, perhaps, a kind of license, which we may tag, ‘YouTube license’. With over 1.3 billion active users, YouTube is easily the world’s leading video streaming platform with which you can also get your covers out there. A cover song on YouTube accompanying audio-visual work requires both a synchronization license and a mechanical license. Due to YouTube’s popularity and proliferation of cover songs, efforts to streamline the licensing process have led many large copyright owners to enter into direct licensing deals with YouTube. In effect, these licensing agreements permit a user to upload the cover song to YouTube without having to directly obtain a mechanical or synchronization license. In return, YouTube provides the original track’s copyright holder with the revenues earned from any advertisements displayed during the broadcast of the user’s cover song
In conclusion, so, what if you do not get any of these licenses?
You may rely on Fair Use Doctrine only if you’re making a parody of the original song, or a commentary or for educational purposes. And if the doctrine does not avail you, chances are you are liable of copyright infringement, and if you make a cover song and it is becoming the new cool, the result is twofold. You cannot protect the cover song, and you may be sued for copyright infringement. And you do not want to sued, right?
Written by Olanrewaju Moses. For IP &IT LAW Club, University of Ibadan Research Team