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Regarding YouTube, Cover Songs and Infringement.
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gj Michelob
Posts: 1531
Joined: Nov. 7 2008
From: New York City/San Francisco
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 Regarding YouTube, Cover Songs and I...
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I exchanged emails with Rombsix regarding Copyright Infringement by performing a cover song on YouTube. I think it is important that all be aware of these general principles.
The publication of someone else’s copyrighted work, even if rearranged, even if gratuitous, requires permission.
There are licensing companies, like Rightflow, which secure the “mechanical license” required in order to release a cover song, with payment of the statutory 9.1 cents per CD containing the song, or per download. A more complex formula applies to streaming music, which could be the case of YouTube.
To be lawfully safe, when releasing a cover song, the mechanical license should be secured and licensing royalties paid accordingly. However, YouTube is not clear about offering a licensing service nor any calculation of such Royalties.
Some labels seem more aggressive in protecting their artists and their work on YouTube –as we have often encountered when sadly staring at a blank page after our favorite Nunez or Tomatitio’s videos hastily disappeared. However, regardless of any complaint it may receive, YouTube employs a variety of tools to red-flag such infringements and may strike down an infringing video before receiving any complaint.
I am now curious, and have sent an email to YouTube seeking clarification.
“Dear Sir or Madam, I am US legal counsel to ForoFlamenco, a well known, international internet forum devoted to flamenco guitar.
Members have posed the query on how a “cover song” may be properly licensed before or when posting the video of their performance on YouTube. While mechanical licenses can be secured and royalties paid easily for CD or downloads of cover songs, the same is not clear regarding YouTube streaming videos.
The question concerns the many home-videos presenting an artist’s rendition of a famous song, typically contemporary copyrighted work. As you know, YouTube hosts a vast library of videos by amateur and professional musicians performing copyrighted work with neither express nor mechanical license. However, certain videos seem to raise concern and are promptly removed while others survive YouTube’s scrutiny, irrespective of the quality of the performance and of any direct or indirect commercial exploitation –which on YouTube is quite unlikely a purpose.
Are there any Licensing requirements and is there a process available to artists (through YouTube or other related sources) to clear such licensing requirements –which are available for other forms of publications such as CD, Radio and the like; and finally,are there any exceptions to your infringement policy, such as a video presented as a tutorial for other musicians?
I look forward to and thank you for your kind cooperation and for the wonderful service you provide. All of us interested in music have learned immensely, and ironically, through those very cover-song videos, to which all students of music can so effortlessly and easily relate.
Best regards,
gj
Giacomo James Corrado, Esq.
CORRADO MONTGOMERY
267 Fifth Avenue, Suite 810
New York, New York 10016
Telephone: 212.838.0600
Mobile: 917.607.7974
gjc@CorradoMontgomery.com
www.CorradoMontgomery.com
_____________________________
gj Michelob
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Date Jul. 22 2010 22:22:04
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Pgh_flamenco
Posts: 1506
Joined: Dec. 5 2007
From: Pittsburgh, Pennsylvania
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RE: Regarding YouTube, Cover Songs a... (in reply to gj Michelob)
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quote:
The publication of someone else’s copyrighted work, even if rearranged, even if gratuitous, requires permission.
There are licensing companies, like Rightflow, which secure the “mechanical license” required in order to release a cover song, with payment of the statutory 9.1 cents per CD containing the song, or per download. A more complex formula applies to streaming music, which could be the case of YouTube.
If you post a vid you had better hope it doesn't hit one million views. Those pennies can really add up!
Interesting email GJ, can't wait to read their reply.
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Date Jul. 22 2010 23:08:50
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gj Michelob
Posts: 1531
Joined: Nov. 7 2008
From: New York City/San Francisco
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RE: Regarding YouTube, Cover Songs a... (in reply to gj Michelob)
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quote:
I am now curious, and have sent an email to YouTube seeking clarification.
“Dear Sir or Madam, I am US legal counsel to ForoFlamenco, a well known, international internet forum devoted to flamenco guitar.
Members have posed the query on how a “cover song” may be properly licensed before or when posting the video of their performance on YouTube. While mechanical licenses can be secured and royalties paid easily for CD or downloads of cover songs, the same is not clear regarding YouTube streaming videos.
The question concerns the many home-videos presenting an artist’s rendition of a famous song, typically contemporary copyrighted work. As you know, YouTube hosts a vast library of videos by amateur and professional musicians performing copyrighted work with neither express nor mechanical license. However, certain videos seem to raise concern and are promptly removed while others survive YouTube’s scrutiny, irrespective of the quality of the performance and of any direct or indirect commercial exploitation –which on YouTube is quite unlikely a purpose.
Are there any Licensing requirements and is there a process available to artists (through YouTube or other related sources) to clear such licensing requirements –which are available for other forms of publications such as CD, Radio and the like; and finally,are there any exceptions to your infringement policy, such as a video presented as a tutorial for other musicians?
I look forward to and thank you for your kind cooperation and for the wonderful service you provide. All of us interested in music have learned immensely, and ironically, through those very cover-song videos, to which all students of music can so effortlessly and easily relate.
Best regards,
gj
My stubbornly relentless search was punished by a bureaucratic labyrinth of meaningless automated replies and disorienting digital voices. Eventually, a human voice, although distant and unconcerned, seemed warm as “it” dictated the email address of Google-YouTube’s legal department. However, the answer to my courteous letter is nothing more than a frigid, distracted direction leading back and away into a tangled warren of burrows and tunnels.
But this is only the beginning. YouTube could technically remove all videos form the Tomatito competition, or of any musician illustrating “how-to” play Paco de Lucia or Vicente Amigo, leave alone “sweet home Alabama”.
The doctrine of “fair use” produced an assortment of reasonable exceptions to the copyright infringement statute, which the US courts have keenly protected and further developed, particularly when the alleged wrong consisted in “reproducing” protected work to enhance public knowledge: educational purposes. Yet, this case-law does not wrestle with the new digital universe presenting a quantity and speed of reproducing copyrighted work which was unknown to learned justices, the Internet and YouTube.
Here is Google-YouTube's response:
“Thanks for your inquiry. We're glad you take copyright laws seriously - YouTube does too. In general, you must be certain that your video does not infringe someone else's copyright before you upload it to our site. We cannot make this determination for you, it's your responsibility to know the rules, but we suggest you refer to our Copyright Tips at http://www.youtube.com/t/howto_copyright, where we've provided some guidelines and links to help you determine whether your video infringes someone else's copyright.
You may also visit YouTube’s Copyright School, a self-paced guide to copyright terms and tools, found here:
http://www.google.com/support/youtube/bin/static.py?page=guide.cs&guide=25903
Sincerely,
Google Legal Support”
_____________________________
gj Michelob
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Date Jul. 23 2010 14:08:29
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gj Michelob
Posts: 1531
Joined: Nov. 7 2008
From: New York City/San Francisco
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RE: Regarding YouTube, Cover Songs a... (in reply to Ron.M)
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We know the rules, it is the exception we are interesting in understanding, and the apparently odd fashion it is administered by Google-YouTube.
As far as our privileged music niche, Flamenco, is concerned, infringement does not seem to be such an overwhelming threat. Incorporating, rearranging and even fully reproducing traditional falsteas is not only tolerated but required.
While formal videos of flamenco performances are often removed by YouTube, there seems to be very little interest in challenging home-videos presenting one’s rendition of Tomatito or Vicente’s work.
The most aggressive industry really is “pop music”, for it obviously generates enormous revenues and needs to protect every penny.
I am not done with YouTube, yet.
The Digital Millennium Copyright Act relieves service providers (such as YouTube is) not only of liability but above all of any preoccupation regarding infringement on their sites, thus preempting any need to lobby for more and wider exceptions.
In general, the DMCA limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet. Service providers, however, are expected to remove material from users' web sites that appears to constitute copyright infringement. YouTube has a standard “notification” policy, requiring infringement-complainants to give notice to YouTube of any alleged infringement. YouTube will simply remove the offending flagged Video.
The question really is, what interest might YouTube have in salvaging those home-videos?
I have contacted an authority in the area of “mechanical licenses”, Scott Sellwood (General Counsel at Rightflow) to see how such licenses could apply to YouTube.
Strictly and rigorously viewed, YouTube’s site is replete with offending infringements; however, those infringing videos represent a very important component of its success. There must be an interest in that robotic legal department to balance the conflicting interests and sort this out. I hope to find someone sufficiently ambitious to embrace a ground breaking project, such as this is.
_____________________________
gj Michelob
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Date Jul. 23 2010 15:24:23
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Ricardo
Posts: 14873
Joined: Dec. 14 2004
From: Washington DC
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RE: Regarding YouTube, Cover Songs a... (in reply to gj Michelob)
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Not sure what the big deal is. I was warned about this stuff 15 YEARS ago in my Legal aspects of music business class. Internet, fair use, etc etc... the normal laws no longer apply and new field, wide open for debate and investigation, has just waiting for these issues for years.
I think it is clear they don't want to deal with licensing. If YOUR video gets flagged (only reason why is cuz someone doesn't like YOU or a robot is after something YOU are loading), so it is quite simple if you either OWN it or have license to use it, you just TELL them, and you can keep it up. What is so difficult about understanding that? All the bad videos up that you are curious about, why not just flag them if you are so bothered by it? The videos will be removed as we all know NOBODY has a license anymore. Most people dont even has paper that says they own copyright of their OWN songs anymore. Why? cuz as of a decade ago you don't even need it to be a copyright owner. It only helps to have such paper work or proof of date when it goes to court....which will NEVER happen unless someone both hits the big time AND there is also someone jeleous about it.
And further more, the laws I am talking about and seem to be discussed here, only apply to USA. Youtube is super international. Try do get a mechanical license here in usa for a song from spain. Good luck.
Ricardo
_____________________________
CD's and transcriptions available here:
www.ricardomarlow.com
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Date Jul. 23 2010 17:46:56
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rombsix
Posts: 7825
Joined: Jan. 11 2006
From: Beirut, Lebanon
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RE: Regarding YouTube, Cover Songs a... (in reply to Florian)
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You're hilarious, Florian! 
I had received several notifications in the past month about videos where it would say that the audio or something else in the video was owned by some company, but that no action is required on my part (and that maybe the video will no longer be viewable in certain parts of the world). However, the reason I took my videos down is because this time, the notification I received was more of a threat, and despite me being in Lebanon (where it is probably harder to reach and sue me for copyright infringement), I decided to indulge. I was told that my account would be shut down, and that my IP address would be banned and disallowed from creating a new account on YouTube, or even accessing the website's important features. They also threatened with taking legal action against me.
This is why, I just said, "Why bother?" Might as well take the pop videos down, focus on flamenco, and spend most of my time studying / working (which probably would get me somewhere in life more than making video covers of pop songs for people to learn how to play the chords to accompany said songs).
_____________________________
Ramzi
http://www.youtube.com/rombsix
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Date Jul. 24 2010 11:37:26
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Adam
Posts: 1156
Joined: Dec. 6 2006
From: Hamilton, ON
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RE: Regarding YouTube, Cover Songs a... (in reply to rombsix)
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quote:
ORIGINAL: rombsix
You're hilarious, Florian!
I had received several notifications in the past month about videos where it would say that the audio or something else in the video was owned by some company, but that no action is required on my part (and that maybe the video will no longer be viewable in certain parts of the world). However, the reason I took my videos down is because this time, the notification I received was more of a threat, and despite me being in Lebanon (where it is probably harder to reach and sue me for copyright infringement), I decided to indulge. I was told that my account would be shut down, and that my IP address would be banned and disallowed from creating a new account on YouTube, or even accessing the website's important features. They also threatened with taking legal action against me.
This is why, I just said, "Why bother?" Might as well take the pop videos down, focus on flamenco, and spend most of my time studying / working (which probably would get me somewhere in life more than making video covers of pop songs for people to learn how to play the chords to accompany said songs).
 Now how am I supposed to learn how to accompany Amr Diab songs?
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Date Aug. 2 2010 23:05:59
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