Piano World Home Page Forums Our Most Popular Forums Adult Beginners Forum Youtube Cover Removed for Copyright Infringement

All my YouTube stuff so far is original, but in one piece: I have a section where I quote a section of Gershwin's "Rhapsodie in Blue". Could this trigger a copyright problem?

Like everything else in legal world, I could see all being very complicated.

When I read about the cafe using your song, I remembered a dream I had in which I was riding in the back seat of a car sometime in the future and the radio was playing. A commercial came on in which one of my songs was being used for the jingle. At first I thought "they stole my song", and then I just decided to be flattered.

the song with the Gershwin quote in it:
[video:youtube][/video]

No, the law says that "Everyone involved with the performance" is required to take care of licensing. But in practical terms a venue owner is easier to find and would take the heat from trying to cheat, that and your typical rock guitar player is not any good at business, contracts or license stuff. So in practice they do it. But if he didn't they could in theory go after any band member or even the audio engineer. But in practice the venues simply pay a flat fee based on size and number of shows. But my point is the law does not spell this out, that is just the most common and easy way to comply with the law.


I think u-tube is more like a venue that refuses to pay the fees and pushes it on to the performers. Likely they have little choice.

Why the studios bother to find and complain about small time amateur doing covers? My bet is that the process is automated. They have basically robots looking for the violations and the software lacks the common sense of a real person and just sends the notices.

I think there is also a concept in IP law that says that if you don't defend you property you loose it. So it may be just for show, so that if they ever need to then one day they can prove that they spend X hours per month on IP license enforcing.

Good news is that there is an inexhaustible and still growing supply of 75+ year old music.

I don’t know, all this is way beyond me, but I thought you only owed royalties to another artist, song writer, studio, record company, or whoever, if you used or recorded their music for commercial purposes and tried to make money on the recording. Just about every musical video recording on YouTube is someone else playing someone else’s’ music.

Since we are discussing this topic, let’s say someone complained to YT about a particular song/piece we recorded and uploaded to YT for fun, what could they do to you? Could they sue you, fine you, or just ask you to remove the video or either just remove it themselves?

Rick

There's performance fees, Rickster (which are usually paid by the venue) and then there are mechanical recording royalties paid if you create a permanent recording. My understanding is that one's obligation to pay royalties is unrelated to the fact of whether you want or are trying to make money off it. Of course, record companies and artists are more likely to be aggressive about protecting their copyright if they think somebody is trying to make a fast buck off them.

Here's an example of the live vs. recorded performance distinction. One of my favorite symphonic metal groups, Nightwish, once made a cover of Michael Nyman's "The Heart Asks Pleasure First" where they added lyrics to it (and not a few electric guitars ). They are able to perform that cover all they want at their concerts (after paying the appropriate performance fees), but when they asked permission to record it for one of their albums, Nyman refused. (Apparently he didn't care for their interpretation.) So only a few bootleg copies of it exist, and YouTube has been removing clips of the concert footage when it gets discovered.

The usual course is that the publisher files a DMCA (Digital Millennium Copyright Act) take-down notice with YouTube. The law says YouTube must disable the video unless the poster files a DMCA counter-notice justifying right to the usage, copy to the publisher, false statements punishable by criminal perjury prosecution. 14 days after counter-notice, YouTube can restore the video unless the publisher files a lawsuit against the poster for copyright infringement in Federal Court in the district where the poster lives. Note that copyright law reserves all audio visual usage to the copyright holder with no provision for compulsory licensing like there is for audio recording. Although I think fair usage still applies.

The only alternative I know of for audio-visual usage is if the copyright holder (the publisher) transfers audio-visual rights to a performing rights organization like ASCAP or BMI. Then you might have the option of licensing with the performing rights organization. Which is usually better than dealing with the publisher because ASCAP and BMI guarantee to defend licensees and hold them harmless to any lawsuits. Publishers on the other hand generally look to expand licensee liability in perpetuity. Problem is that ASCAP and BMI web licensing is relatively new and some publishers are unaware of it, dispute it, and have not read the specifics of their own agreements with their performing rights organizations. I license my web usage with both ASCAP and BMI and have had to have them fend off a few publisher attacks myself. Hopefully it'll all get sorted out soon and YouTube will begin licensing directly with ASCAP and BMI. Which would be the best of all worlds for everyone.

Howard

another one of the people I sometimes listen to posted this (for guitar)

http://www.youtube.com/watch?v=pKxa_Zaqu3Y

which is kind of similar to what another Piano teacher ended up posting, both of them ended up in trouble because of covers of Eagles songs, there are discussions about this on the youtube support forum, but basically as things stand now posting covers is definitely risky if you care about your youtube account.

I'm not aware of a 'defend-it-or-lose-it' clause in international copyright law.. That's an interesting one. And I didn't say it was the venue's legal responsibility - I said it was their problem - subtle, but legally significant, semantic difference.

It seems like the recurring theme is if you play the works of someone who's still alive, then they can still file copyright violations.

However, dead people, like Chopin, Beethoven, and Joplin, can not file such complaints. Hence, all the more reason to stick to classical works. (LOL)

This is rather puzzling. Under U.S. copyright law, the rules for a mechanical license (which you need to record a work) change if and when the work is ever actually recorded. My understanding is: if some other artist has negotiated a license to record a work, you then do NOT need to negotiate a new license to record it; you only need to pay the statutory royalty rates established under the law. In other words, the copyright holder can't withhold a mechanical license from another artist once they have allowed any artist to record. But they obviously still get royalties from these subsequent recordings.

Here's the way the Harry Fox website explains it: "Under the U.S. Copyright Act, the right to use copyrighted, non-dramatic musical works in the making of phonorecords for distribution to the public for private use is the exclusive right of the copyright owner. However, the Act provides that once a copyright owner has recorded and distributed such a work to the U.S. public or permitted another to do so, a compulsory mechanical license is available to anyone else who wants to record and distribute the work in the U.S. upon the payment of license fees at the statutory 'compulsory' rate as set forth in Section 115 of the Act."

According to HFA Songfile (the database that Harry Fox maintains for mechanical licensing), The Heart Asks Pleasure First has been recorded by several artists besides the original composer. So it seems like anyone can go ahead by just paying compulsory royalties. I'm certainly not a copyright lawyer, so I wonder if anyone understands this differently?

I'm guessing this is the critical issue:

Adding lyrics and/or making significant changes to the instrumentation makes it not just a cover, but a derivative work, which requires permission of the copyright holder.

That makes a lot of sense, daro. Of course that leaves the courts in the tricky position of having to determine whether "significant changes" have been made or not. Guess that's why there's a lot of copyright lawyers.

Never thought about it until now, but does anyone know the legality, or otherwise, of embedding YT videos in this forum, as opposed to simply linking to them for example?

Boy, I went to school for the wrong thing.

From what I understand, there is no difference.

lol this seems somewhat complicated.. now I'm paranoid to record anything other than my own compositions which is a problem because I can't compose any better than I can play chopin or Mozart which btw isn't very good haha. Well not that I ever really tried composing but I wouldn't have a clue where to start. Some of you that compose all the time are all very amazing and make it look easy Sighs, I'm at a lost rather to keep recording and hope I don't get flagged or stop all together >.< grrrrrrr bad music companies!

According to intellectual property attorney Denise Howell, the author of Lawgarithms and the host of This Week in Law, the problem with embedding infringing YouTube clips is fairly straightforward.

“Any time you incorporate a copyrighted work into a site without the rightsholders’ consent, you’re potentially liable,” said Howell, “It doesn’t matter where it’s hosted.”

In short, since your site or blog is gaining benefit from another’s copyrighted material without permission, you can be held liable for it. It does not matter if the content is hosted elsewhere, posted by someone else.

Worse still, according to Howell, it does not matter if the person doing the embedding was aware of the infringement.”Innocent or ignorant infringement is just as actionable as the intentional variety,” said Howell. The only difference is the amount the plaintiff would be able to win in statutory damages should the case go to court. However, even in cases of innocent infringement, that amount can be as high as $30,000 per work infringed.

Finally, YouTube, as one might expect, offers no protections against such unwitting infringement. In its terms of use under section 5-G, it states that “YouTube is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions.”

When it is all said and done, according to Howell, there is nothing to stop a rights holder, especially a well-funded one, from targeting sites that embed YouTube videos. If a rights holder believes that the site owner might be wealthy enough to pay or be motivated to settle, it is within their rights and their power to go after them.

Here's the exact wording of 17 USC 115I(a)(2):

"A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner."

... the business about derivative work only means Nightwish can't get its own copyright for its innovations without consent of the copyright holder. But lyrics could always be copyrighted as poem. The way this reads, I would think Nyman would have trouble blocking the Nightwish recording as long as it preserved the original melody. I guess that's the question.

Howard

Nyman could probably argue (with some success) that the Nightwish interpretation changed the "fundamental character" of the work; going from a minimalist piano solo to raging electric guitars and double-bass drum patterns is pretty fundamental, lyrics notwithstanding.

p.s. YouTube covers itself by having a prominent notice displayed whenever you upload a video that you should only upload material that is your own original content.

I don't see how you can add a verse to an existing song without permission and expect to get a separate copyright just as a "poem" - it would be blatant plagiarism. Besides, the music and lyrics are generally combined together as a single copyrighted entity - that's the "fundamental character." This is why composers and lyricists, if not the same person, are considered joint authors, and each has equal rights in the work as a whole, not just the music, or just the lyrics.

This thread makes my head spin and creep me out a bit. If YT ever touches my stuff, I'm probably gonna pull everything just because I don't want to deal with any of this for the sake of a fraction of a speck of Internet fame for performing yet another special snowflakey version of a Clementi sonatina or Mendelssohn's Venetian Boat song... simply not worth the trouble and possible fines and lawsuits. I guess YT just wants to fill itself with self vlogging talking heads of how its users brushed their teeth a particular morning for original content.