Borrowing, Stealing, and Copyright Infringement

New artists imitate, great artists steal.

(I was asked to write a post explaining the basics of copyright in music. This is not really that post.)

An original musical work is protected by copyright law the instant that the artist (or artists) first records it or writes it down. An unrecorded session doesn’t create any lasting rights, copyright-wise at least. After a first recording, a musician has a protected copyright in both the song as a musical composition and the recorded version of the song as a sound recording. This assumes the songwriter and performer are the same. It seems strange now, but back in the old days music had to be put in notational form to gain copyright protection. In practice, a musical composition and a sound recording are typically owned by different people and different sets of rules and rights apply to each.

A musical composition exists outside of space and time. Well, not really, but sort of.

What parts of a song are protected by copyright and when is playing a similar song copyright infringement?

That is not an easy question, I’ll get to that below. But, a sound recording is easily understood and so is copyright infringement of the recording. Recorded music, home taping, Napster, Spotify is killing the music industry. Unauthorized downloading of a recorded song is infringement, usually, probably. Don’t do it. Buy it. Neil Young says that music file sharing is the new radio. Maybe. Radio does mostly suck (notable exceptions, excepted). Maybe online radio is just the new radio though.

You can legally cover songs though, so, umm, what about that, lawyer-man?

True, due to music’s unique cultural importance and some accidents of history, copyright law essentially contains a cover right, called a compulsory mechanical license. This applies to the musical compositions only. You can change up the original version of the song a little, but you are not allowed to alter the “basic melody or fundamental character” and you certainly may not “pervert, distort or travest[y]” the original. For god’s sake, man, have some respect. The easiest way to comply with the compulsory license rules is to go through the Harry Fox Agency or limelight. You can also contact the copyright owner directly or comply with the detailed procedures adopted by the US Copyright Office at 37 CFR 201.18-.19.

But, hold on. This right to record and sell cover songs does not include the right to publicly perform a cover song (except maybe in church or the classroom). Sing a cover song in a bar and you are probably covered by a license granted to the venue by one of the performance rights organizations: ASCAP, BMI, SESAC. Extortionists. ASCAP, whose motto is “All your music are belong to us”, once claimed that the playing of a ring tone when somebody calls you was a public performance of music and required a license. The law disagreed on that one, but ASCAP doesn’t take losing sitting down, so the law will probably just have to change.

Just to make it a little more complicated, in the 90s, Congress decided that copyright law should recognize a digital performance right for sound recording owners (i.e., labels and by extension, performers). Before this, performers got nothing from radio plays, except a fan base, of course. Along with this new right for sound recording owners, Congress also created a new compulsory license that allows satellite and online radio stations to pay regulated licensing fees, “performer royalties,” under a set of very complicated rules. You may have heard of SoundExchange, which is the digital performance rights organization that collects performer royalties from webcasters. You can check here if SoundExchange has any royalties waiting for you to collect.

None of this applies to me. I just want to play “Ho Hey” for my nephew and post the adorable video on Facebook and then dance at my wedding to Chris Brown’s “Forever” and put it on YouTube. First, if you listen to Chris Brown you are a horrible person, and second, you are probably out of luck in a technical legal sense, but maybe okay speaking practically.

For playing a cover of “Ho Hey,” you would need to contact the Lumineers or their music publisher who manages the actual music composition rights (it looks like that might be Kobalt Music Group) for an affordable sync license (license request form here.) If you want to use an existing recording of a song (as most people do), you would have to get a sync license, as well as get a master use license from the sound recording owner (typically, the label) for rights to use the recording.

Ugh, forget it.

Well, YouTube has actually made this a little more user-friendly by creating a Content ID system that grants a sort of automatic license when people put up a video featuring songs that have been registered with YouTube by music publishers. Sony, for example, allowed the first “Forever” wedding dance video through this system, so they could cash in on all those cold hard views. (Google that video yourself, I won’t link to it.) It looks like Kobalt Music Group also plays along with the Content ID system, so you can probably upload your “Ho Hey” video to YouTube, but Facebook would not be cool.

It is kind of a sketchy and tedious process to check out all these issues before posting your latest lip dub, so most people just risk a DMCA take-down notice and/or a copyright strike against their YouTube account. If you are making an actual professional video, you need to get the rights to the music. There are a couple of new shops trying to make quality independent music available for quick and easy online licensing. Check out rumblefish or Pump Audio.

Yes, fair use is a real thing, but the music industry has a fairly constrained definition of “fair”. Fair use or not, whether or not your content gets taken down is somewhat at the whim of “Big Content.” The Electronic Frontier Foundation is out there everyday fighting the good fight to protect fair use.

Please, get to something resembling a point. When can I play a song that might be like another song but is not a cover?

In 1970, George Harrison wrote “My Sweet Lord.” Unfortunately for George, his song was very similar to “He’s So Fine” by Ronald Mack and recorded by The Cliffons. Listen for yourself.

Harrison had unknowingly been inspired by and imitated the unique melody that was the essential core of the original song. The lyrics and some elements might have been different, but this level of borrowing was still infringement, which Harrison was ultimately found liable for and had to pay out his earning.

In 2007, Kanye West released “Stronger,” inspired by his reading of Nietzsche’s Twilight of the Idols. He could be a Book Club member! Oh wait, no, he was more likely inspired by a hip-hop wannabe, Vince P, who had played Kanye’s producer his song “Stronger” in 2006. Both songs have a repeated rhyme scheme of “stronger”, “longer” and “wronger” and an odd reference to Kate Moss thrown in there. While this theft might be despicable, it is not copyright infringement. Phrases, rhymes, ideas, and common motifs are legally steal-able (with limits of course).

Borrowing is sometimes infringement and stealing sometimes isn’t. Steal responsibly.

Joe is a business and intellectual property lawyer at Adler Vermillion & Skocilich LLP and counsel to the Bushwick Book Club Seattle.