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Old 06-23-2013, 10:34 AM   #1
johnyere
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YouTube and copyright infringement?

Sorry if this is in the wrong section, i wasn't sure where to post it.

I got a question about uploading covers to YouTube: is it copyright infringement if it's me playing over a backing track of a certain song (not the song itself, but a backing track somebody had made).

Also, is it possible to get sued for uploading a cover like this, or will i just get a strike from YouTube or something along those lines?
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Old 06-23-2013, 10:38 AM   #2
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I believe covers are under covered by fair use and therefor okay. Using a backing track makes it even better, because it's got less of the original artists material.
You're not going to get sued for uploading a cover, that I am sure about. Worst that will happen is Youtube will take the video down and maybe warn you.
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Old 06-23-2013, 04:00 PM   #3
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Nothing on Youtube is covered under fair use, as it is youtube dot COM aka commercial.

Regardless of who is performing the song, it is still the original work, so you need to license it for it to be a legal usage.

There's a low chance of being called out on it, but it is absolutely illegal. They probably won't sue you, but they could if they wanted. You'll most likely get the video pulled though.

Source: I work in music rights management.

I'm not trying to be a buzzkill, just trying to get the truth out there amid all of the myths.
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Old 06-23-2013, 04:12 PM   #4
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You're best off doing what everyone else does: acknowledge it's not exactly legal, do it anyway, and hope it doesn't get pulled. I cringe a bit every time I see those "fair use disclaimers" in the descriptions of uploaded videos; it's obvious they didn't read them, just heard from some random jackass that they're some magic anti-lawyer amulet. But in the end, they're probably not going to sue you or do anything drastic, especially over an amateur cover video.
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Old 06-24-2013, 11:07 AM   #5
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Legally it's a grey area (backing tracks should be ok provided you have the maker's permission), but just man up and post it anyway, everybody does it.

You're not going to get men in dark suits knocking round at your house, don't worry.
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Old 06-24-2013, 11:11 AM   #6
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Quote:
Originally Posted by kyle62
Legally it's a grey area (backing tracks should be ok provided you have the maker's permission), but just man up and post it anyway, everybody does it.

You're not going to get men in dark suits knocking round at your house, don't worry.

Well, legally, it's not a grey area. It's illegal. Black and white.

If you do have permission from the person who holds the copyright, then you can do it. Not the person who made the backing track, but the person/people who holds the actual rights to the song.


ps. I will be stalking this thread and dispelling all myths/rumors and clarifying the actual laws in the hopes that more people will find this and not get the wrong ideas about this stuff.
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Old 06-24-2013, 11:17 AM   #7
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Originally Posted by Sid McCall
Well, legally, it's not a grey area. It's illegal. Black and white

Nothing about copyright law is black and white.

I honestly don't know if there's even any kind of legal precedent for backing tracks - chances are Youtube just comply with DCMA takedown requests to be on the safe side.


The difference between theoretical and practical application of copyright law is huge, anyway.

Like I said, just post that stuff. Since there are tens of thousands of copyrighted albums on Youtube, a guy shredding over a homemade backing track is pretty low priority.
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Old 06-24-2013, 11:38 AM   #8
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Quote:
Originally Posted by kyle62
Nothing about copyright law is black and white.

I honestly don't know if there's even any kind of legal precedent for backing tracks - chances are Youtube just comply with DCMA takedown requests to be on the safe side.


The difference between theoretical and practical application of copyright law is huge, anyway.

Like I said, just post that stuff. Since there are tens of thousands of copyrighted albums on Youtube, a guy shredding over a homemade backing track is pretty low priority.

A backing track (like, copying the parts on the record, not a four-bar rock drum beat looped) is copyright infringement. There is no minimum amount of a song that is 'okay' to use.

If I were to make a backing track with crappy midi drums and a badly sampled midi bass that were playing the exact drum beat/fills and bassline from a song, let's say hysteria by muse, then I have absolutely violated their rights by doing so.

If I sold that on a CD, I could pay them a small royalty per copy, and that's fine. If I used it as a guitar instructor in a private lesson then I don't need to pay or do anything.

If I upload it on a commercial website like Youtube, and synchronize it to video, then I need explicit permission from the rights holders to do that. Even without vocal and guitar tracks, I have infringed on their copyright.

That is absolutely black and white. In fact, it is written in black and white in the United States Code Title 17, available here: http://www.copyright.gov/title17/

It's actually written in plain English, not even legalese.


Now, I'm not a lawyer, so I can tell you this: you can go ahead and post that all over Youtube and nobody is going to do anything about it. Maybe if you hit a few hundred thousand plays and sell ad revenue on the page, yeah. Otherwise, nobody is gonna do anything.

Does that make it right? No. It's still illegal. Could the laws be adjusted for the digital age to make it easier for people to do stuff like this? Or even an easier licensing process with lower fees to make synch licenses more easily accessible to the guitar-playing layman? Yeah, totally. They could and should and I will be fighting the good fight if and when that goes down. And I will be fighting it from the inside.

Until then, the law is the law, and I might as well squash some myths and inform some good folks like yourselves

Edit: I know you (and many others) are in the UK, but the law isn't much different. Also, YouTube is an American company and thus follow American laws. So if you feel the need to turn this into a debate, no need to pull the 'UK' card
DoubleEdit: UK Law isn't much different, just different lengths of time for protection. Everything else is the same: http://www.copyrightservice.co.uk/c...k_copyright_law
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Old 06-24-2013, 12:06 PM   #9
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This is a bit of a tangent; you can skip to the end for how it relates to this thread.
The part that YouTubers cream themselves over, and also the part the entire internet is completely clueless about, is fair use. I've seen several videos where someone uploads a full album, and then add this little clause from the Copyright Act of 1976 to the description, thinking it'll magically ward off lawyers:

Quote:
Notwithstanding the provisions of sections 17 U.S.C. 106 and 17 U.S.C. 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


If these people could be arsed to read the damn thing, they'd see that they just admitted "fair use" isn't entirely objective. It depends on a few factors:
*Are they trying to supplant the original, or just reproduce part of it for use in something else?
*Are they copying it wholesale, or just using part of it?
*If they copy it, what impact will that have on the value of the original work?
According to all of these things, uploading a whole album onto YouTube is not fair use. It's the whole thing, it replaces the original, and it could easily mean less album sales. I'm not saying people should stop doing this, but some honesty and responsibility would be nice- who am I kidding, that'll never happen. I bet most of these people don't even have ball hair yet.
Using a backing track, on the other hand, doesn't replace the original (there's your guitar playing over it), and only copies some of the instruments. And people aren't going to listen to your amateur guitar cover instead of getting the song (or, at least, finding a better upload on YouTube). So even though it doesn't make it legal, that definitely helps your case.
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Old 06-24-2013, 12:10 PM   #10
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Quote:
Originally Posted by Cavalcade
This is a bit of a tangent; you can skip to the end for how it relates to this thread.
The part that YouTubers cream themselves over, and also the part the entire internet is completely clueless about, is fair use. I've seen several videos where someone uploads a full album, and then add this little clause from the Copyright Act of 1976 to the description, thinking it'll magically ward off lawyers:



If these people could be arsed to read the damn thing, they'd see that they just admitted "fair use" isn't entirely objective. It depends on a few factors:
*Are they trying to supplant the original, or just reproduce part of it for use in something else?
*Are they copying it wholesale, or just using part of it?
*If they copy it, what impact will that have on the value of the original work?
According to all of these things, uploading a whole album onto YouTube is not fair use. It's the whole thing, it replaces the original, and it could easily mean less album sales. I'm not saying people should stop doing this, but some honesty and responsibility would be nice- who am I kidding, that'll never happen. I bet most of these people don't even have ball hair yet.
Using a backing track, on the other hand, doesn't replace the original (there's your guitar playing over it), and only copies some of the instruments. And people aren't going to listen to your amateur guitar cover instead of getting the song (or, at least, finding a better upload on YouTube). So even though it doesn't make it legal, that definitely helps your case.


Beside all of that, fair use doesn't apply to YouTube because it's a commercial website run for profit. Therefore, any content uploaded for any reason (be it educational or parody or whatever) is NOT covered by fair use. Maybe if there was a Youtube.edu but that probably won't happen, though it could be insanely useful.
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Old 06-24-2013, 12:10 PM   #11
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Right, good point. Even if the uploader isn't profiting off their videos (with ads), YouTube is, and YouTube probably doesn't own the copyright.
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Old 06-24-2013, 12:15 PM   #12
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AFAIK, the only things that can be copyrighted musically are the recordings themselves, the physical sheet music, lyrics, and substantial, essential parts of a melody.

Most of the major cases involving infringement of a melody seem to get settled out of court or dismissed.

Jesus, I hate theses kind of threads. Although the law behind it is interesting to speculate upon, the simple answer is to just upload that shit and stop worrying...it's just a harmless backing track.
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Old 06-24-2013, 12:30 PM   #13
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Quote:
Originally Posted by kyle62
AFAIK, the only things that can be copyrighted musically are the recordings themselves, the physical sheet music, lyrics, and substantial, essential parts of a melody.

Most of the major cases involving infringement of a melody seem to get settled out of court or dismissed.

Jesus, I hate theses kind of threads. Although the law behind it is interesting to speculate upon, the simple answer is to just upload that shit and stop worrying...it's just a harmless backing track.

I'm not trying to be rude, just informative, so please let me correct you one more time

The lyrics, sheet music, melody, and any incredibly original drum work are ABSOLUTELY covered in the copyright. The only thing you can't copyright is a chord progression.

It is important to note that I am NOT arguing against the OP posting stuff on YouTube. Go for it, I encourage it!

I just totally threadjacked this and I'm going out of my way to explain the actual laws, because it is one thing to say 'go ahead and post it'' and another to say 'go ahead and post it because you aren't infringing on a copyright' because you will be. Except nobody will really care.
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Old 06-24-2013, 12:32 PM   #14
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Actually, with the amount of cover videos on youtube and considering most don't get taken down (AFAIK) is there any chance they could pay some kind of general licensing? You know, like music venues do, so that cover bands that play aren't infringing copyright?
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Old 06-24-2013, 12:49 PM   #15
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Originally Posted by Sid McCall
I just totally threadjacked this and I'm going out of my way to explain the actual laws, because it is one thing to say 'go ahead and post it'' and another to say 'go ahead and post it because you aren't infringing on a copyright' because you will be. Except nobody will really care.

It's for a good cause. That's the reason I'm sperging out over these "disclaimers".
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Old 06-24-2013, 12:57 PM   #16
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Originally Posted by chatterbox272
Actually, with the amount of cover videos on youtube and considering most don't get taken down (AFAIK) is there any chance they could pay some kind of general licensing? You know, like music venues do, so that cover bands that play aren't infringing copyright?

Good question! That would be performance royalties. ASCAP and BMI will pay out performance royalties on all songs that are properly licensed. It's fractions of a penny per play, but it adds up eventually.

They do not pay for unregistered uses, so all of the unlicensed/illegal uploads do not put money back in the artist's pockets. (Fun fact - performance royalties are rarely cut into by labels/publishers, and the artist sees a VERY high net income, as opposed to record sales).

I believe that there will be a bit of reform on this in the future, once licensing is easier/cheaper then there will be more registered uses out there for artists to collect on.

My company is partnered with a UK company CueSongs (run by Peter Gabriel) and they make licensing independent artists' music for film/tv/youtube very very simple and affordable. Our whole roster is registered with them, actually. They don't have many big-name bands, although there are some. http://www.cuesongs.com/

This is the future of the music industry, as far as independent artists are concerned. I know this doesn't have much to do with guitar-based cover songs, but it's definitely on topic. Somehow.
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Old 06-24-2013, 04:38 PM   #17
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Originally Posted by Sid McCall
The lyrics, sheet music, melody, and any incredibly original drum work are ABSOLUTELY covered in the copyright. The only thing you can't copyright is a chord progression.

Don't get me wrong, I find this stuff really interesting to debate....I just think it'll scare OP into not uploading his music, which is daft. Good to talk about though.

Sorry, no bloody way drum parts are protected by copyright. It's the main melody (in the context of the song) and lyrics only.
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Old 06-24-2013, 04:59 PM   #18
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Originally Posted by kyle62
Don't get me wrong, I find this stuff really interesting to debate....I just think it'll scare OP into not uploading his music, which is daft. Good to talk about though.

Sorry, no bloody way drum parts are protected by copyright. It's the main melody (in the context of the song) and lyrics only.

Not trying to scare anyone, just righting wrongs

95%+ of drum beats are not protected, but there's some leeway when it's percussion ensemble stuff and realllly intricate parts, but it is really uncommon.

Melody (in or out of context), lyrics, harmonies, instrumental riffs/solos, and related rhythms are all subject to copyright. Only progressions themselves and most drums are exempt.

Although it's all laid out in black and white, if there is a dispute it will (eventually) be heard by a judge and jury who will apply human logic and reason to the case. To prove a violation, there needs to be more than just two songs that sound similar, there needs to be reasonable proof that the alleged copycat had access to and would have heard the original work, among many other aspects (fun fact- this is why labels/publishers can't accept unsolicited materials, because people can try to prove their work was stolen because the label had a copy of their demo tape, although it most likely went straight in the trash).

ps. Sorry I keep rambling on, I am really passionate about this stuff. I do this stuff for a living and I'm really lucky to have a job that I enjoy doing. I tend to go on and on and on if I'm allowed, so don't mind my lengthy threadjack. Maybe I'll start a Q&A thread for copyright questions? That could be nice.
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Old 06-24-2013, 09:56 PM   #19
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I'm not sure this is the thread for it, but keep going. The thing about labels not accepting unsolicited demos was pretty illuminating (among other things).
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Old 06-24-2013, 10:12 PM   #20
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Sid is right on the money with the copyright information. There is SO much misinformation out there, it makes it difficult for us musicians to do the responsible thing - to respect the intellectual property of other musicians.

"No copyright intended" is my favourite. Yeah, a copyright was most definitely intended - by the creator, not the jackass who thinks its okay to violate someone else's copyright.

In most cases, the law really is black and white. Stealing is bad. Paying is good.

About the drum beats.... the criteria used to measure infringement is something to the effect of (and I can't remember the exact verbage, but this is close), "compositionally important and uniquely identifiable."

Nobody came up with I, IV, I, V7, I, or any other chord progression. As progressions go, they're all fundamentally derivative. A drum beat that goes "kick, snare, kick, kick, snare" is derivative. However, some drum beats really are uniquely identifiable. I'm thinking Zeppelin's "Rock and Roll", or Aerosmith's "Walk This Way" - or perhaps even better... Wipeout. That may be a grey area, but I'd err on the side of caution before ripping off any of those.

As far as "fair use" (or "fair dealing" as it is known in Canada) goes, the language seems to allow for parody/satire, even if for profit.

My own experience was this: I made a video - highly political in nature - to the tune of Winter Wonderland. I wasn't expecting any more than a few dozen or so views, but it topped out at about 13 000 views. As it was rolling along, it got pulled by YouTube for copyright infringement. I did not have permission to use Winter Wonderland, and their audio fingerprint analysis picked it up - even though it was my own arrangement and performance.

I appealed it and they agreed with me, based on Fair Dealing and the exceptions for parody/satire, which my video clearly was. Even though I had monetized my account and made a whole $20 or whatever off the whole thing.

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