For an abridged version of this paper, see this page.
Though the practice of covering previously-performed songs has been prevalent in music history for several decades, many new artists looking to build their profiles in the modern music industry release cover songs by currently popular artists, often putting a unique spin on their performance in order to showcase their stylistic originality and also gain the interest of fans to support their careers. However, copyright laws are a problematic issue that many artists must face in order to legally release and sometimes profit from their reworked cover versions. Artists need to be aware of copyright laws when posting and selling covers to ensure that they are working within the law, but when done successfully, they can use cover songs as an effective method of building a fanbase and boosting their musical career. This paper will analyze and critique the current copyright system and how it relates to song covers, particularly those that are posted and released through the video-sharing website YouTube. After an introduction covering the history and variants of cover songs, a deeper analysis of copyright law on YouTube and in the music industry will follow, along with case studies of how they can both help and hinder artistic creativity for developing artists using YouTube as a platform for which to promote their music careers.
I. AN INTRODUCTION TO COVER SONGS
In a 1952 issue of the Chicago Daily Tribune, journalist Will Leonard described the idea of covering a song as “trade jargon meaning to record a tune that looks like a potential hit on someone else’s label” (Leonard 1952: A4). Since the forties and fifties, popular music artists have created their own versions of others’ original performances, differing from the standard of earlier decades of producing music in a live setting while reading printed sheet music. Since then, countless cover songs of many varieties have been released. As singer-songwriter Don McLean defined on his blog as part of a discussion behind a popular Madonna remake of his song “American Pie,” a “cover song” typically denotes a performance by an artist of an older, previously-performed work of another artist (McLean 2004).
McLean’s blog entry also detailed the early history of cover songs and their original race-based function. During the period of segregation between white and black Americans, he recounted the following:
If a black act had a hot record the white kids would find out and want to hear it on ‘their’ radio station. This would prompt the record company to bring a white act into the recording studio and cut [a white] version of the song to give to the white radio stations to play and thus keep the black act where it belonged, on black radio. (McLean 2004)
These performances are examples of cover songs done by altering musical elements of the original, rather than creating a stylistic copy [though McLean states that these white performers’ covers were “exact” (McLean 2004) replicas of the black originals, they often differed enough to be stylistically accessible to white radio audiences]. Though without the same racial purpose, a large number of modern covers are altered, restyled versions of an earlier-performed song. These arrangements are designed to replicate the original with various stylistic changes that make it more unique to the performing artist, such as the song’s genre, vocal arrangement, or instrumentation. Not only can these covers help highlight the creativity and originality of the cover artist, but it can also extend the shelf life of the original song and artist whose material was remade.
Another type of cover song comes from the ideology of producing a copy of an earlier-performed song with as much similarity to the original as possible. While some artists release infrequent covers in such a style, many more of these exact, “note-for-note” covers are found through tribute bands and compilation albums. Tribute bands are believed to have originated in the sixties and seventies following the success of The Beatles and Elvis, and are designed to perform exact covers “with the conviction that it is important that they re-create music of the past as ‘authentically’ as possible” (Meyers 2011: vi). Though the similar nomenclature is cause for confusion, tribute albums are different in that they have been recorded to celebrate – and often, to memorialize – the careers of formerly-popular artists; however, they usually fall more closely toward the altered variant of a cover song. Recent compilations have included tributes to Buddy Holly, Jack White, and John Denver. These too differ from the closely-mimicking covers from media like video games Guitar Hero and Rock Band, competitive reality singing shows like American Idol and The Voice, and even karaoke performances, which point to both the wide variety and breadth of the cover song in modern pop culture.
II. THE CURRENT STATE OF COPYRIGHT LAW
As creators of music continue to create and innovate, such as with the recently-formed brands mentioned in the preceding section and the covers that they release, they are faced with the decades-old regulations of copyright law. This includes artists who post covers online for free listening on YouTube, even though they are not always aware of the legal requirements involved in doing so. Following content takedowns on YouTube and the potential for legal action from both sides of the copyright debate, the legal question has arisen of whether or not the unique properties of a typical cover song are enough to avoid complaints of copyright infringement. While an artist (or their representative record label) is unable to copyright the style in which they perform a piece of music, they do have two copyrights over their original material: one for the musical composition of the song, and another for the sound recording, or the artist’s own version of it (NMPA 2013). In order to cover a song once it is copyrighted, an artist must obtain a mechanical (or “reproduction”) license to distribute music as a physical or digital product; this license is usually obtained from the Harry Fox Agency, which is owned by the National Music Publishers’ Association (NMPA 2013). For songs being posted on YouTube or in another medium that adds a visual element to the performance (Kinney 2012), a synchronization (or “synch”) license is also necessary. Whereas mechanical licenses are compulsory in that the Harry Fox Agency has set fees that artists pay to cover a song and that the original artist cannot prohibit another artist from covering their song after having paid the compulsory license fee, synchronization licenses are not compulsory and “publishers enter into direct licenses with users” (NMPA 2013), instead of being pre-determined by the Harry Fox Agency. As such, the copyright holder is able to set their own fees and choose whether or not to allow individual requests for song covers, increasing the difficulty for artists trying to use cover songs on YouTube as a promotional platform. While users often believe they are covered from copyright infringement by simply mentioning “fair use” in the description of their YouTube video, this is untrue as there is no transformative use of the material (Baio 2012). Therefore, many covers posted on YouTube (and other services like SoundCloud and Bandcamp) are pulled down, much to the surprise – and often, discontent – of the uploader.
As well-known media lawyer Lawrence Lessig writes in his book Remix: Making Art and Commerce Thrive in the Hybrid Economy, the “old guard” of copyright owners have turned to criminalizing the online sharing of content as a response to their gradual loss of control, particularly as public consumption of online media has increased since the turn of the century. This has resulted in a legal gray area concerning cover versions posted online, especially those that are offered for sale through retailers like iTunes and Bandcamp. Content providers such as YouTube have taken action – often at the request of the companies that hold copyright of the covered content – to remove unauthorized and unlicensed cover songs; they have also developed technology that helps content providers identify and take action against copyrighted material posted on the platform.
This leads to the important question of what is considered copyrighted material on YouTube and how the social media platform responds to allegations of copyright infringement. As previously mentioned, while many users upload unauthorized videos of copyrighted content with descriptions that cite “fair use” or a lack of intent to commit copyright infringement, this does not authorize their content and exempt them from typical copyright regulations; this includes original covers of others’ material. As YouTube’s Copyright FAQ states, “recording a cover version of your favorite song does not necessarily give you the rights to upload that recording to YouTube. You may need permission from the owner of the underlying music in order to upload the recording legally” (YouTube 2013). As such, YouTube monitors reports of copyright infringement and takes action against infringing content providers; though the user’s account can be terminated, it is unlikely that legal action will follow: the Electronic Frontier Foundation reports that “no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video” (Electronic Frontier Foundation 2013).
Though copyright owners can manually report infringing videos to YouTube, many instances of copyright infringement are now automatically identified by the platform’s Content ID system, which launched following monetization deals with labels and publishers in 2007. When videos are uploaded to YouTube, Content ID automatically scans the audio and video material of the upload and checks it for matches within its “database of files that have been submitted … by content owners” (YouTube Help 2013), a process also referred to as audio fingerprinting. Content ID was expanded following its launch to also identify cover versions and live performances based on the melody of the audio (Baio 2012). Independent tests by YouTube user Scott Smitelli (username retnirpregnif) revealed that the system scanned uploaded videos in a matter of minutes and could identify copyright-violating content even with background noise, amplification, and subtle changes below five percent in pitch or tempo (Smitelli 2009). If the uploaded content has a match within the Content ID database, one of three policies will be enabled according to the choice of the content owner who owns the copyrighted content: the video will be monetized with ads that make profit for the content owner; the audio and/or video will be blocked from playback on YouTube (sometimes only in certain countries); or the video’s viewership statistics will be viewable in the content owner’s Analytics (YouTube Help 2013). If videos are removed, a strike is placed on the uploader’s account; YouTube’s three-strike system ends with termination of the account on the third strike, complying with copyright laws and the Digital Millennium Copyright Act (YouTube 2013).
If copyrighted audio and video are pulled almost immediately, with no human confirmation, how do so many cover songs (nearly 90 million at the time of writing, based upon a simple search query) make it onto YouTube unharmed by copyright restrictions? The answer lies in copyright-based settlements that YouTube has made with various publishers in recent years. These blanket synchronization licenses, which cover thousands of publishers, “[allow] publishers to opt-in to a program that [lets] them take a cut from a $4 million advance pool and up to 50 percent of the advertising revenue from any cover song they own the rights to” (Baio 2012). However, YouTube does not publicize which publishers have signed on to their program, meaning the only way to accurately determine whether a cover song is legal is by uploading the song and waiting to see if it is detected by Content ID, triggering copyright notices and the potential for strikes against the uploader’s account. Presuming an uploaded video survives this initial check, the synchronization license allows for substantial money-making opportunities for both the cover artist and the original performers and copyright holders, illustrating the potential mutual benefit of keeping cover songs as a part of music culture.
III. CASE STUDIES
Despite the difficulties that artists must face when creating and sharing cover songs, this practice has built solid foundations for artists whose careers now include major-label record deals and chart-topping releases. Many more musicians have gained a significant amount of fame and profit within the YouTube community where they post regular cover videos; and FOX television show Glee, whose songs are almost entirely a cappella covers of popular songs and show tunes performed on the show then released for purchase, has produced more Billboard Hot 100 singles than any other artist in the history of the chart (Trust 2013). These examples show the prevalence of cover songs in the digital age and their potential to build careers of artists who display originality and creativity, additionally outlining the importance of ensuring that copyright laws reflect the current state of the industry, which has changed greatly despite the dormancy of the copyright system.
To begin to show the use and impact of cover songs in the industry, one of the biggest stars of the twenty-first century provides a prime example of how they can lead to great success. Canadian musician Justin Bieber started his career by releasing music through YouTube, beginning with a 2007 talent show performance of Ne-Yo single “So Sick” covered when Bieber was just twelve years old and posted online for absent family to view (kidrauhl 2007; Hoffman 2009). From there, Bieber recorded covers of pop and R&B staples like Usher, Justin Timberlake, and Chris Brown, gaining popularity from fans and the music industry alike with videos recorded from his home. Hip-hop manager Scooter Braun discovered Bieber through the social media platform and, along with Usher and Island Def Jam chief executive L.A. Reid, turned Bieber into an artist with a major-label recording contract. Now, original song “Baby” is among the most-viewed videos posted on YouTube, and fifty-one Billboard Hot 100 singles later (Billboard 2013), Bieber is one of the most successful artists on the chart, largely due to his early use of cover songs posted on YouTube to build an initial fanbase.
However, along with the fame and attention that Bieber received from his cover songs, he also provided a very prominent example of how tighter restrictions and legislation regarding copyright could have made his musical career as it is today nonexistent. In 2011, non-profit organization Fight for the Future launched a “Free Bieber” campaign, which used Bieber as an example of the harm that could come from legislation being considered by Congress. Through this campaign that spread quickly across the internet due in part to Bieber’s fame (and infamy) as an artist and public figure, Fight for the Future opposed Congressional bill S.978, also known as the Commercial Felony Streaming Act. As it was proposed, the bill could have punished any video content on YouTube that contained copyrighted material as a felony with a maximum of five years in jail that had “only [ten] YouTube views … and a hypothetical “fair market value” of $5000” (Ernesto 2011), including the “supposedly unauthorized” (Gardner 2011) cover songs that caused Bieber’s rise to fame. As director Tiffiniy Cheng told website TorrentFreak in an interview, “the main problem with the law is since copyright law is so expansive, it applies to lots of completely harmless and common things: like singing a song, dancing to background music, or posting a video of a kids’ school play, for example” (Ernesto 2011). Though the communications team of the Senate responded to online stories discussing the dangers of the bill by stating that claims “that it would make posting certain content online, on sites such as YouTube, illegal” (Communications Team 2011) were false, the bill has yet to be enacted, with additional discussions on online copyrighted content leading to the highly controversial Stop Online Piracy Act and the Protect IP Act, both of which were postponed in the wake of such protests (Condon 2012).
As part of the dialogue surrounding the Free Bieber campaign and the Commercial Felony Streaming Act, Director of Legal Policy at the Copyright Alliance and Copyhype blogger Terry Hart wrote that “Justin Bieber is not going to jail” (Hart 2011) by defining how the changes to copyright law caused by the proposed Congressional bill would not apply to Bieber’s YouTube covers, disassembling the argument of the Free Bieber campaign. As he wrote, “copyright is made up of several, discrete rights: the right to reproduce, distribute, prepare derivative works, and publicly perform (or display) a work” (Hart 2011), which conforms to the different elements of copyright previously discussed in this paper. Since the Commercial Felony Streaming Act only proposed changes to performance rights and content uploaders on YouTube do not act as the performer (in the copyright sense of the word) – rather, YouTube itself does – the legislation would not affect the act of uploading a video to YouTube. Furthermore, Hart notes that “creating and uploading videos to YouTube that use copyrighted material without permission is (and always has been) copyright infringement” (Hart 2011), confirming the Congressional statement denying any change in legality for YouTube videos after the approval of S.978.
Because of the danger in having an illegal, copyrighted video removed from YouTube and the looming potential for legislation to result in legal proceedings, it is important for artists using YouTube as a promotional platform to be smart about uploading and securing the rights to their material. In addition, they must be mindful of the elements of success for previous cover artists discovered through the platform, as they highlight best practices for developing artists. One such way to be successful is with YouTube covers made unique through originality and creativity. As previously discussed, cover songs that showcase unique elements of an artist’s performing skill allow them to stand out and build listener interest. The following examples show that with awareness of the potential for viral success with cover songs posted on YouTube, there is a greater chance of being discovered through the site.
Particularly since the start of this decade, many of the most popular cover songs on YouTube have been reworked versions of the most popular hits at the time. Billboard chart-topping hits like Adele’s “Rolling in the Deep,” Foster the People’s “Pumped Up Kicks,” and more recently, Lorde’s “Royals,” Daft Punk’s “Get Lucky,” and Robin Thicke’s “Blurred Lines” have received countless covers by a myriad of artists in just as many genres. Another hit single that was featured in many online covers was Australian singer Gotye’s “Somebody That I Used To Know.” While Gotye’s original version eventually grew to be a big success in its own right, then-independent Canadian quintet Walk off the Earth went viral and ignited additional interest in the original song by performing a five-people-one-guitar cover of the song recorded and posted on YouTube. Within a month of the video being uploaded in January 2012, the Walk off the Earth cover accumulated nearly 50 million views, compared to the 65 million views accumulated at that point by Gotye’s uploaded video, which was posted to YouTube in July of the previous year (Kelly 2012).
Not only did Walk off the Earth receive viral attention from the clip, they used their sudden success to ink a major-label deal with Columbia Records. Following their label agreement, the band released original material for sale along with additional covers on YouTube, including one of Lorde’s “Royals,” thus furthering their career trajectory while continuing to showcase their creativity to fans. In addition to the chance to sign with a record label, Walk Off The Earth was also able to profit from YouTube’s previously-discussed synchronization license. Music blogger Alan Cross determined that with an estimated payment rate of $2.50 CPM (cost per thousand views) and a 35% payout of advertising revenue to the band – 50% is taken by YouTube and, since the song is a cover, 15% of the remaining revenue goes to the music publisher holding the copyright of the original song – Walk off the Earth would have made nearly $30,000 in revenue, or $6,000 per band member, in under a month (Cross 2012).
Another group that used their success posting covers on YouTube to sign a major-label record deal was Karmin, a duo who formed in 2009 between two graduates of the Berklee College of Music, Amy Heidemann and Nick Noonan. With the assistant of manager Nils Gums and marketing and web-based skills developed through Berklee curriculum, Karmin analyzed the success – or lack thereof – of their first year’s attempt to break through using YouTube. Their original material failed to ignite – Noonan was quoted as saying “‘…no one cared, because it was a group they’d never heard of playing sounds they’d never heard’” (Novak 2012) – and their early classic rock covers lacked the uniqueness necessary for attention on such a large platform. After posting eighteen covers and six originals on one channel with little traction, the group began to incorporate Heidemann’s rapping skills (a stylistic difference from the norm considering she was a white female from rural Nebraska) and started clean as karmincovers on YouTube (Kellar 2013). By regularly covering rising singles from radio and sales charts and taking advantage of YouTube technologies such as keywords, descriptions, and search engine optimization to improve their visibility on YouTube searches, Karmin began to receive more viewer attention. All singles were free of copyright infringement with the purchase of compulsory licenses, and the band first gave their singles away in exchange for an email address before monetizing them on iTunes two weeks later. Receiving 45 cents with each 99-cent download on iTunes, these practices were all benefits to Heidemann and Noonan that began through cover songs on YouTube.
After their cover of Chris Brown, Lil Wayne, and Busta Rhymes’s “Look At Me Now” went viral overnight in mid-April 2011 (Kellar 2013), Karmin was approached by Epic Records, who offered them a record deal. At the time the duo signed to Epic, “they brought 80,000 email addresses and an estimated $125,000 in retail sales of digital downloads with them” (Kellar 2013). Karmin’s case study shows the benefit of originality and marketing savvy in posting covers to YouTube, as well as the monetary benefit of obtaining compulsory licensing. In addition, this example also notes one clear benefit for the “old guard” in keeping platforms like YouTube alive: by using YouTube as an A&R platform for discovering potential talent to be signed, a record label can find original, digitally-savvy artists who will be aware and ready to build their careers and increase their own profits as well as those of the label.
While the benefits of a label deal can be enticing to musicians whose cover songs become successful YouTube hits, some artists have chosen to remain independent, continuing to use their skill and work ethic to become online celebrities in their own right. As NPR noted in a story earlier this year, “if you search for a song called ‘Payphone’ by Maroon 5, you’ll find the original, and you’ll find the Jayesslee version, the P.S. 22 version and one by Tyler Ward” (Nelson 2013). These artists are all musicians that have used YouTube as their home base for posting cover songs and then monetizing them, much in the same way that Karmin did before signing a label deal. Replacing record labels for these artists are multi-channel YouTube networks (or “MCNs”) of content creators, including Fullscreen and Maker Studios. (It is worth noting that the largest multi-channel network, Vevo, does work with label-affiliated artists and is owned and operated by groups including Universal Music Group and Sony Music Entertainment.)
One such group born and bred through YouTube is brotherly trio Boyce Avenue, whose YouTube channel claims they are “the most viewed Independent band in the world” (boyceavenue 2013), with over 4.6 million subscribers and 1.1 billion views to their channel since joining the service in September 2007. Like the previous case studies, Boyce Avenue signed to Universal Republic Records in early 2010 after having released cover songs on YouTube. After being with the label for less than a year, the band decided “it just wasn’t the right move for a band like [them]” (Gutelle 2013) and returned to independently releasing their own original material through their own label, 3 Piece Records. Being independent has allowed Boyce Avenue to “release more product and do so more gradually” (Gutelle 2013) than the traditional two-year album cycle of the major-label music industry, which has allowed them to experiment with content and musical arrangements over time. While they have shifted to releasing more original material now that they have built a large fanbase, the band still produces acoustic covers that are posted on YouTube as well. However, their work in interacting with fans and consistently producing content helped Boyce Avenue become a prime example of how independent artists can use YouTube as a viable, yet still legal, platform for performing cover songs and profiting both monetarily and through increased fandom.
Through these and numerous other examples, it is clear that the practice of covering already-performed songs can be a beneficial tool in building an artist’s career, particularly through YouTube, and that the practice is unlikely to go away anytime soon. As shown by artists like Boyce Avenue and Tyler Ward, consistency in the quality and release of YouTube covers can lead to the creation of a large, supportive online fanbase that requires no major-label assistance to accumulate views and ascend to the top of music charts. Even artists who use YouTube as a stepping stone to a record deal, like Justin Bieber, Karmin, and Walk Off The Earth, benefited from the exposure that each cover provided. In addition, each case study showed the potential of monetary profit by posting covers with mechanical and synchronization licenses so that not only will the original copyright holder make money with each view, but the cover artist will be able to profit as well having made an agreement with the original artist or their representative company.
It is important that the current system of copyright law does not stifle the creativity of these cover artists while also being mindful of the intellectual property of the original copyright holders. One conclusion that can be made is the need for clearer guides from YouTube (and other content hosts) on how to make sure an artist’s content does not infringe upon another artist’s copyright, so that they can freely express their musical ideas without worrying about the potential legal ramifications that could follow a copyright dispute if legislation becomes tighter in the future. In addition, technological processes like the automatic Content ID system and the ability to dispute copyright claims online should be perfected so that they do not unintentionally criminalize content creators. Finally, copyright law should be reformed to allow for free distribution of non-commercial cover songs. The case studies previously discussed in this paper, particularly the case of the viral Walk off the Earth cover of “Somebody That I Used To Know” simultaneously boosting the views of the Gotye original, show that covers can boost the new artist’s career while also improving exposure to the song that they are covering. As Lawrence Lessig has noted repeatedly, copyright laws were created to encourage the sharing of ideas. Since the cover song does not threaten that ability (Baio 2012), the copyright system should encourage this sharing of ideas, rather than hindering it.
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