Copyrights and Covers
We explore copyright law applied to cover music, and throw in a little music theory to show how difficult applying copyright law to music can sometimes be.
We explore copyright law applied to cover music, and throw in a little music theory to show how difficult applying copyright law to music can sometimes be.
We explore copyright law applied to cover music, and throw in a little music theory to show how difficult applying copyright law to music can sometimes be.
Musicians attempting to build audiences often fall back on sonic landscapes that are familiar in an attempt to use familiarity or even nostalgia to appeal to listeners. Creating music in a well-known and popular style or genre is one approach. Another example of this strategy is performing and recording cover music. A cover of a song is a new performance or recording of an existing song, sometimes heavily rearranged or with different instrumentation, one that is generally copyrighted by the original artist.
What Makes a Cover a Cover
The original meaning of the word cover is unclear, with explanations ranging from an attempt to “cover” up another recording of the same song in the stack of vinyls in a record shop, to a racially motivated idea where white artists either produced a more acceptable “cover” of the song with their own pictures on the label, or “covered” the chance of success of the song from the record label’s perspective. Regardless of its origin, the meaning has shifted to mean any recording of an original song by another artist. Many artists have covered songs in order to provide their own take on it, transforming the original song in a way that adds their own flavor, often becoming more popular than the original, such as Aretha Franklin’s “Respect” (originally by Otis Redding), Johnny Cash’s “Hurt” (Nine Inch Nails) or Jimi Hendrix’s “All Along the Watchtower” (Bob Dylan).
Music and Copyrights
So what is legally required from artists if they make a cover of someone else’s work? Well, copyright law covers many different types of works. There are 8 different subject matters that may be copyrighted pursuant to U.S. law (https://www.law.cornell.edu/uscode/text/17/102):
literary works
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works
When copyrighting a song, then, the musician gains the following exclusive rights for their musical works (https://www.law.cornell.edu/uscode/text/17/106):
to reproduce the copyrighted work in copies or phonorecords
to prepare derivative works based upon the copyrighted work;
to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
to perform the copyrighted work publicly
to display the copyrighted work publicly
to perform the copyrighted work publicly by means of a digital audio transmission.
Because the copyright owner of a musical work has these six exclusive rights, others wishing to use the musical work in some way must obtain permission from the copyright owner to do so in the form of a license.
The first type of license is the Master License, which gives the licensee the ability to use pre-recorded copies of the song in other works, but not to record their own version. Music is often reused in other works, such as movies, music videos, or when a section is sampled into another song. The copyright owner has the right to protect their work from being used in these projects, or to grant permission for use through issuance of a license.
If someone wants to pair a musical work created by someone else with a video or other visual medium, that person will need a Synchronization License from the copyright owner. Sync licenses allow for music to be “synchronized” to visual media, so should someone want to use an artist’s song in their movie or documentary or cool skate video they made with their friends for YouTube, they’ll need to pay royalties to the copyright owner.
The third and perhaps most popular license is the Public Performance License. Any time a musical work is performed or broadcasted, it is licensed, and the copyright owner receives royalties from the license user. This covers anything from an FM radio station to a jukebox to a live concert.
There is also the Print Rights License, which covers the written arrangement (such as sheet music) of a song, where someone wishing to reproduce a printed version of a song must obtain this license and pay royalties to the copyright holder. Mechanical Licenses are needed for both the physical reproduction of an artist’s work, and (much more importantly for our purposes here) the recording of a cover song. Manufacturing of CDs, vinyl records, or even cassette tapes along with their distribution are covered by this license, allowing the artist to profit from their manufacture, distribution and sale.
So, artists who would like to record a cover and distribute it would need a Mechanical License. If they would like to perform the song, they would need a Public Performance License. And should they want to put the song on YouTube along with a video, they would need a Synchronization License as well. These three licenses are the ones most often needed and used by cover artists.
Where exactly is the line drawn when calling a song a cover? When does the cover artist need to apply for a license? How much of a song can be “copied” before there is a danger of copyright infringement? This can be extremely hard to define. It’s fairly obvious when one artist takes lyrics word for word, but at what point does the music itself become something copied?
Proving Infringement
To prove that a song or a component of it has been copied, it falls to the copyright owner to prove both access and substantial similarity. Access means that it can be demonstrated that the alleged infringer would have likely heard the song, or otherwise had a relationship with the artist who wrote it. If a song reaches a certain level of popularity, it is sometimes assumed by the courts that the alleged infringer would have heard it and possibly even “subconsciously internalized” it, such as in Bright Tunes Music v. Harrisongs Music, where former Beatle George Harrison was found to have committed copyright infringement of Ronnie Mack’s "He's So Fine.” The concept of substantial similarity is somewhat self-explanatory. To find copyright infringement, slight similarities in the songs are not sufficient, and the two songs need not be identical. The similarities need to be substantial.
Two songs can be the same in general structure but have wildly different sounds. A great example of substantial similarity comes from a dispute between Lana Del Rey and Radiohead, in which Radiohead claimed Del Ray copied their hit song Creep in her Get Free. A quick listen will tell you the chords and parts of the vocal melody are the same.
The chords and chord changes in a song are not usually copyrightable. But they can be if the song’s chord structure is sufficiently unconventional and elaborate. No court ever ruled on the Lana Del Rey/Radiohead dispute, so it is not clear whether Radiohead’s chords and chord changes for Creep were copyrightable. But they may be - the song moves from a major fourth to a minor fourth seven, which is highly unconventional. All Radiohead would have to prove in order to make Del Rey wish she’d gotten some of the above licenses is access and substantial similarity.
A Little Music Theory: In Case All That Talk of Chords Piqued Your Interest
A chord is a combination of three notes: a root note, a third (sometimes called a color tone), and a fifth. These tones are separated by a number of half-step intervals, of which there are 12 in a Western scale. Here they are represented on a piano:
A half step is one note to the one immediately next to it, so C to C# or B to C are half steps. A whole step is two half steps, such as C to D or G# to A#. A chord is a root note, followed by a third (four half steps up when major, three when minor), and a fifth (7 half steps up (more or less when augmented or diminished)). For example, a C Major chord would be C-E-G.
There are only 7 (or 8, sort of) positions in the scale, represented by Roman numerals I-VII. Each chord can be major or minor (among other things). Major chords are represented as uppercase (i.e., I or VI), and minor chords are represented as lowercase numerals (i.e. i or vi). Music can be analyzed as a combination of chords laid out in series, of which only so many are pleasing to the human ear. Using these accepted structures does not usually qualify as any type of copyright infringement as they are too common and have been in use too long to be considered completely original by themselves. Thus, only so many chord progressions appear in music. The most common examples include (not in any order and some not listed here are also very common):
I-V-vi-IV
(and its rotations, where the order is the same but the starting point is different)
I-I-I-I
IV-IV-I-I
V-IV-I-I,
(12 Bar Blues)
I-V-vi-iii
IV-I-IV-V
(Canon)
Get Me Away From Here I’m Dying
To analyze this, let's break down songs by their most basic components, from a loose music theory standpoint. A song doesn’t technically need to have anything to be music. John Cage’s 4’33” is a great example of this. Be sure your volume is up high when checking that one out, it’s definitely worth a listen. Music can also go the other way and have high complexity and lack any constant melody, going as far as to sound as harsh to the human ear as possible, such as Death Grips’ Hot Head (skip to about 2:10 for the best example). The point is that music can be almost anything at all, but most music is going to be somewhere in between, balancing both sound and silence, and trying to be pleasing to the human ear while still containing enough dissonance to retain complexity. Most songs can be said to have a melody, and an underlying chord structure (though they don’t have to). Melodies are a much more clear cut way to frame copyright infringement, as it is easy for most listeners to tell if an artist is using the same melody as another. The chord structure can be hardest to pin down in terms of legality, with only a few being the subject of copyright claims, and even then only in situations where sufficient unconventionality can be proven.
References:
17 U.S. Code § 102 - Subject matter of copyright: In general
17 U.S. Code § 106 - Exclusive rights in copyrighted works
https://973thedawg.com/the-real-reason-theyre-called-cover-songs/
https://ask.metafilter.com/11636/Why-is-a-cover-song-called-a-cover-song
https://www.masterclass.com/articles/cover-song-music-guide
https://www.musicbed.com/knowledge-base/types-of-music-licenses/28
https://www.buzzfeed.com/reggieugwu/what-the-law-says-about-music-plagiarism