Is a cover video considered "Fair Use"

[jtrom]

Are you talking about the play-along type of thing, that is to say you playing bass over the original copyright work, or are you talking about complete and new cover versions recorded by you or your band? I've had a couple of the latter tagged with notification of possible claim, but no actual strikes.

I'm talking about the play along type of thing. I have no interest in monitizing it because I see that as a clear violation of copyright.

Here's an example of what I do for fun:


As some have mentioned (@DWBass @JRA) it's a good idea to claim fair use/education in the video. I could always try to come from a more pedagogical lens to cover any issues.

WORST case scenario, they take it down and I claim fair use and they say "no".

I'm just curious to see what people do. There are play along videos with millions of views and I wonder if those folks get special treatment... probably

 

[jtrom]

Technically it doesn't matter if you made any money or not - copyright applies to any use of the work.

Fair use is a somewhat nebulous concept and tends to be a case-by-case judgment call. For example, in teaching a college class, I could make a copy of a chapter out of a book to give to students (back when we actually made photocopies) but not the whole book, and in fact not multiple chapters; when it becomes more than a sample or excerpt out of the book I had to tell them to buy it. On the other hand, I could put a copy of the book on reserve at the library and THEY could photocopy it to their hearts' content with no violation, as long as I wasn't distributing multiple copies. (These days, posting a scanned PDF that they can download or print is the equivalent).

On that analogy, I think that, if what you're posting is a performance of the song, then the copyright holders have the right to permit or deny you the right to perform it. Fair use would probably kick in if you either posted just an excerpt of the song for demonstration or review purposes, or if you made an actual how-to-play instructional video (OK, we're going to start in G, here at the third fret, and play root-fifth-octave, like this...).

As far as youtube goes, my drummer who managed this for one band I was in said that what happened was they would flag a cover performance, and if the copyright holder liked it well enough, THEY would monetize it, but if they didn't, they'd take it down. FB, on the other hand, tends to just take stuff down.

Example (just to brag, I liked this take):

That's a good analogy. I suppose what I am doing would not be considered fair use as I am using the full recording. If I ever get flagged and get the artists attention I'll take that as a win lol

 

[hrodbert696]

That's a good analogy. I suppose what I am doing would not be considered fair use as I am using the full recording. If I ever get flagged and get the artists attention I'll take that as a win lol

That would be awesome, but (hate to be the downer here) I don't think Taste of Honey actually watched our cover. Some middle-management person on the legal team at Sony or whatever their record label is might have.

 

[Shepsdad]

I have several songs on my YouTube channel that have been labeled “copyright claim”, but from my understanding, a “claim” is not the same as a “strike”. Like others have said, I have very few subscribers and views, so maybe that’s why I’m not hassled beyond a notice in my YouTube control panel. I’ve been “claimed” for a Beatles song, a couple of old country songs, and even a Willie Nelson song, but other than the notification itself, my content hasn’t been removed or limited in any way. I am nowhere near being monetized, and don’t beg for subscribers. Oddly enough, my one cover that was not claimed is a Hendrix song that I posted as private but viewable with a link. I pretty much knew that ANYTHING Hendrix brings the wrath of YouTube, so I was being proactive when I posted that one.

 

[Real Soon]

It doesn't seem to matter if I specifically claim fair use on Instagram posts; randomly (depending on how Eye of Sauron-esque the owning label is, more likely) a video will be temporarily removed, then I'll appeal thru the little form on the app, and they always restore it because it's pretty shaging obvious I'm using the material under fair use. Sometimes videos (I've got some from Yes, RatM, and a few other artists where this is the case) never get bothered, or once in a while an issue pops up four years later.

While I really can't be arsed to give a hell about the major-label leeches trolling for pennies, the ownership laws are clear enough. It's fair to want a way to navigate proper licensing. But the labels just flag everything bc there's no punishment for targeting innocent and proper fair use.

For now, the best we can do is keep doing what we do, as legitimately as ever. In my case, it's always been for purposes of demonstrating either conquering or in-process tackling some technical or stylistic challenge for each excerpt, so I think (as does IG when they review my posts) I'm a fair use slam dunk.

 

[chazolson]

Check out Rick Beato

Exactly what I was gonna say - look up Rick Beato on YouTube. He does “What Makes This Song Great” videos in which he takes ... I don’t know, Roundabout by Yes apart track by track, section by section. Many labels and artists do not care for this, for reasons that escape me. He never just plays the whole song; he takes it apart bit by bit. So piracy is not the issue. But Led Zeppelin (or what passes for LZ’s management at this point) keeps forcing him to take down the videos on their songs. Which is dumb for a bunch of reasons, but primarily because the artist can simply insist that any monies made from monetizing the video (ad sales, etc.) goes to them and not Beato.

 

[Darkhorse1962]

The issue really isn't "fair use" it's licensing and royalties.

Facebook does not pay ASCAP or BMI licensing fees. If they did there would be no problem. Anytime someone posted any version of a licensed song the publisher/songwriters would receive royalties.

That's what happens in any nightclub or bar in which a cover band performs. The club is supposed to be licensed by either ASCAP, BMI or SESAC. If a bar is not, they are subject to fines to the tune of thousands of dollars for every song a band plays. Even the band itself can be fined ( though they rarely are).

That's why Facebook takes down videos of songs. They don't want to pay fees.

BTW, can we clarify the difference between copywritten and licensed. Every song is copywrittten once it exists in some mechanical form (written or recorded) the money issue only comes into play with licensed songs.

 

[40Hz]

the amount of the song used

Last I heard that wasn't necessarily true. The length of the material included has nothing to do with either infringement or fair use claims.

 

[yodedude2]

Technically it doesn't matter if you made any money or not - copyright applies to any use of the work.

Fair use is a somewhat nebulous concept and tends to be a case-by-case judgment call. For example, in teaching a college class, I could make a copy of a chapter out of a book to give to students (back when we actually made photocopies) but not the whole book, and in fact not multiple chapters; when it becomes more than a sample or excerpt out of the book I had to tell them to buy it. On the other hand, I could put a copy of the book on reserve at the library and THEY could photocopy it to their hearts' content with no violation, as long as I wasn't distributing multiple copies. (These days, posting a scanned PDF that they can download or print is the equivalent).

On that analogy, I think that, if what you're posting is a performance of the song, then the copyright holders have the right to permit or deny you the right to perform it. Fair use would probably kick in if you either posted just an excerpt of the song for demonstration or review purposes, or if you made an actual how-to-play instructional video (OK, we're going to start in G, here at the third fret, and play root-fifth-octave, like this...).

As far as youtube goes, my drummer who managed this for one band I was in said that what happened was they would flag a cover performance, and if the copyright holder liked it well enough, THEY would monetize it, but if they didn't, they'd take it down. FB, on the other hand, tends to just take stuff down.

...

great post, hrod

 

[40Hz]

That's a good analogy. I suppose what I am doing would not be considered fair use as I am using the full recording. If I ever get flagged and get the artists attention I'll take that as a win lol

Wow!! You're playing an early Gibson Grabber! That means you can do no wrong, in my book.

 

[SoCal80s]

"Fair Use" applies to a reasonable sample size used for education or editorial purposes. IMHO, what you're doing is too big of a sample to count as Fair Use. However, there should be no impact to you because what YouTube will likely do is flag it with a copyright claim (if their algorithm recognizes it) and then they take away your ability to monetize it and they give it to the copyright holder instead (this is all automated, no one is actually checking on your video for this). So if you weren't planning to monetize it anyway, then there's nothing lost. So post away and let YouTube do their thing.

 

[yodedude2]

Last I heard that wasn't necessarily true. The length of the material included has nothing to do with either infringement or fair use claims.

check this "four factors" site out: More Information on Fair Use | U.S. Copyright Office

 

[Nephilymbass]

I have a YouTube channel that I use to post bass covers of some of my favourite songs. I also post clips of some of these videos to Instagram. On Instagram I have had some videos removed for copyright infringement and on YouTube I am not able to monitize the song (for very obvious reasons) and they are not viewable in some countries becuase of this copyright.

Just curious if there are any bassist out there who have cover or lesson videos on YouTube or other media sites that have navigated the "fair use" policy? I'm kinda coming from an educational perspective on this as it is showcasing a skill... but I'm not exactly sure how to navigate this grey area. I properly cite all of the music that I play in the comment section (MLA).

I do not have many followers or subscribers and these videos are largely cathartic so it's not as though my side hussle is being revoked lol.

Anyway, just curious what you all do?

I’m not entirely sure because I mainly post original content and the few covers I have posts weren’t taken down. but there’s definitely a way to do covers on YouTube and other sites because a lot of people do them. I see a lot of videos of people playing covers on FB also. One thing that might help is to try to stick to songs you see covered by a lot of other people. If their Cover videos aren’t being taken down there’s less of a chance that yours would. It’s a band by band basis kind of thing, some bands don’t mind people posting cover videos of their stuff at all, others are nazis about it. Rick Beato on YouTube has some interesting videos about it.

what a lot of people are doing these days is using twitch for covers. Twitchtv handles that kind of thing differently. When you’re “live” you can cover anything you want and the live video is untouched, they just mute out any audio that would have an issue afterwards so when you’re not live if someone clicks on your videos the covers that would be an issue are muted. Lot of youtubers do their original stuff on YouTube and their cover content live on twitch for that reason.

 

[40Hz]

That would be awesome, but (hate to be the downer here) I don't think Taste of Honey actually watched our cover. Some middle-management person on the legal team at Sony or whatever their record label is might have.

More likely it was spotted by an algorithm of some watchdog service, after which an hourly employee working there looked at it briefly and then hit the button that sent out an automatic take down request.

 

[hrodbert696]

More likely it was spotted by an algorithm of some watchdog service, after which an hourly employee working there looked at it briefly and then hit the button that sent out an automatic take down request.

Maybe, but in our case it wasn't a take-down request; the video is still up, and whoever the copyright holder is picks up a few fractions of a cent every time someone watches it. That was my point about how youtube handles things. I don't know who decides if the cover is good enough for them to monetize.

 

[hrodbert696]

The issue really isn't "fair use" it's licensing and royalties.

Facebook does not pay ASCAP or BMI licensing fees. If they did there would be no problem. Anytime someone posted any version of a licensed song the publisher/songwriters would receive royalties.

That's what happens in any nightclub or bar in which a cover band performs. The club is supposed to be licensed by either ASCAP, BMI or SESAC. If a bar is not, they are subject to fines to the tune of thousands of dollars for every song a band plays. Even the band itself can be fined ( though they rarely are).

That's why Facebook takes down videos of songs. They don't want to pay fees.

BTW, can we clarify the difference between copywritten and licensed. Every song is copywrittten once it exists in some mechanical form (written or recorded) the money issue only comes into play with licensed songs.

Sorta, except that fair use law allows some use of copywritten material without licensing or permission, so it is the issue. In the age of easy, no-gatekeeper digital publishing, lots of people want to claim "fair use" when making use of copywritten material, which is the OP's situation.

The main situations in which fair use applies are for education or for reviews. By freedom of speech and of the press, I can write or blog a review of a song, and I can quote its copywritten lyrics or play a sample of a verse or chorus to show my audience what I mean. I don't need to get license or pay royalties to do so. But if I publish the entirety of the copywritten material without licensing, that's a violation. Movie critics do it with film clips - but they can't show the whole movie. Similar for educational purposes.

 

[Darkhorse1962]

But the OP wasn't discussing fair use, but rather questioning why Instagram was taking down his videos.

Instagram is owned by Facebook. My post about licensing stands.

YouTube is a different animal because they pay licensing fees due to YouTube tv and YouTube Music.

Playing a cover version is not "fair use". Playing along to a recorded version is not "fair use". Any performance of a song that isn't clearly educational or parody isn't "fair use"

Also, "freedom of speech" is completely irrelevant. That constitutional provisions only means the government can't pass laws restricting speech. It doesn't apply to private entities.

I'm sorry if that ruffles some feathers, but the copyright holder is entitled to full compensation for their work regardless of intent or personal renumeration status.

 

[LBS-bass]

But the OP wasn't discussing fair use,

Check the subject line.

 

[Big Heavy Bass]

I have a youtube channel and got a violation notice when I played bass along to a song from my old band, yes it was my band..a song that I wrote but the label was still claiming copyright ownership of it. I've since cleared it up but from what I researched you will most likely just not be able to monetize your video but there is the possibility of receiving a copyright strike and three of those and your channel is taken down. See Rick Beato's youtube channel for what he's gone through with the whole copyright strike/violation thing.

 

[Altitude]

Check out Rick Beato

This. Beato has a lot to say about this issue.