Music, Copyright, and YouTube

I've never paid much attention to copyright policy concerning YouTube until recently. I understand traditional music licensing, but since I haven't been uploading unauthorized material to YouTube, it's not been my concern.

And while I work with musicians whose songs have been used as background music for fan-generated videos uploaded to YouTube or have been covered by other musicians, and no one asked for permission to do so, the songwriters have been flattered by the attention and would never ask that the videos be taken down.

What got me interested in YouTube's policies was this recent video.
Margaret Gould Stewart: How YouTube thinks about copyright

She talks about YouTube's Content ID system:

Well, it starts with content owners delivering assets into our database, along with a usage policy that tells us what to do when we find a match. We compare each upload against all of the reference files in our database. ...

Now, what do we do when we find a match? Well, most rights owners, instead of blocking, will allow the copy to be published. And then they benefit through the exposure, advertising and linked sales....

By empowering choice, we can create a culture of opportunity.

I realized that although YouTube tells everyone to get permission from copyright holders before uploading material, they have a system in place to deal with it after the fact. This, in my mind, quite as step forward in the world of copyright. YouTube must follow the law, but it has a created a system which gives incentives to rights holders to allow copyrighted material to remain in place even if permission wasn't granted in advance. It's still up to the rights holders to determine whether the content stays or goes, but YouTube has created a system which might facilitate the more creative use of copyrighted material.

Content ID has helped create an entirely new economic model for rights holders. We are committed to supporting new forms of original creativity, protecting fair use, and providing a seamless user experience -- all while we help rights owners easily manage their content on YouTube. "Content ID and Fair Use," YouTube Blog, 4/22/10.

I think YouTube has developed a new licensing mechanism. It has created a database of content, then matches the content to the user, and lets the rights holder decide if the video needs to be taken down, if the sound gets shut off, or if the video stays. And as YouTube gets bigger, makes more money, and finds more ways to make it financially worthwhile to rights holders to be flexible about content usage, it creates a viable experiment to see if and how copyright and user creativity can work together. While pro-copyright and anti-copyright groups are debating, YouTube has actually created a system, though flawed, which is working and pushing the envelope without going so far as to get shut down. Here's more on the fine line that YouTube is trying to walk. "YouTube's Balancing Act: Making Money, Not Enemies."

Not everyone is as impressed with YouTube's database system as I am. Some people argue that YouTube is not doing enough to stop unauthorized material from appearing.

... YouTube is sort of like the pawnshop owner who sells stolen jewelry and says “How was I supposed to know it was stolen”? "Industry Chat: A2IM President Rich Bengloff on the State of Indie," Paste, 7/22/10.

.... Google’s habit of gaming the system, of calculating how to harness a willingness to cross the line of legality and then pull back to something more reasonable, while reaping the business benefits of its initial transgression. "YouTube Gets the Power of Eminent Domain," Digital Society, 6/26/10.

Others think YouTube is taking down videos too quickly.

YouTube's Content ID tool fails to separate the infringements from the arguable fair uses. And while YouTube offers users the option to dispute a removal (if it's an automated Content ID removal) or send a formal DMCA counter-notice (if it's an official DMCA takedown), many YouTube users, lacking legal help, are afraid to wave a red flag in front of Warner Music's lawyers. That's a toxic combination for amateur video creators on YouTube. "YouTube's January Fair Use Massacre," Electronic Frontier Foundation, 5/3/09.

Let me start first that I hope I do understand a bit of YouTube’s motivations in creating the Content-ID system. YouTube certainly has a lot of copyright violations on it, and it’s staring down the barrel of a billion dollar lawsuit from Viacom and other legal burdens. I can understand why it wants to show the content owners that it wants to help them and wants to be their partner. It is a business and is free to host what it wants. However, it is also part of Google, whose mission is “to organize the world’s information and make it universally accessible and useful,” and of course to not “be evil” in the process of doing so. On the same blog, YouTube declares its dedication to free speech very eloquently.

As such YouTube does want to avoid the blocking of non-infringing videos while trying to help content owners get rid of actual infringements on the site. These recommendations apply on what to do for partial Content-ID matches where the upload is not simply a verbatim audio/video copy of the content owner’s work, but is possibly transformed into something else which may be non-infringing. "YouTube makes statement on Content-ID takedowns," Brad Ideas, 4/24/10.

He goes on to outline how YouTube could deal with challenged videos in ways other than its current system.

Here's YouTube's response to someone whose account was closed:

Under the DMCA, the relevant law, service providers like YouTube are required to adopt and implement a policy to terminate the accounts of repeat copyright infringers. YouTube implements its repeat infringer policy in a way that has become the industry standard, and the courts have confirmed that other companies with similar policies adequately implement this legal requirement.

Of course, we do everything we can to help our users avoid being in the position of being accused of repeat infringement and losing their accounts. We have clear copyright warnings when people sign up for accounts and when they upload videos; we have a copyright tips section in the Help Centre; we make it easy to file counter-notices if users feel they've been falsely accused; and we provide clear notice to our users when a video taken down for infringement that we will close down their account if they continue to post infringing content. Also, we make it easy for rights holders to use our Content ID system so that their matched content can be monetised instead of taken down under the DMCA removal process if they so choose.
"Jimmy Carr killed my YouTube account," The SocialITe, 2/26/10.

It's important to note that although YouTube is moving forward on creative ways to encourage content usage, it hasn't eliminated copyright laws. So there's still a potential risk in uploading unauthorized content to YouTube.

Let's start with two facts:

1. If your video incorporates copyrighted material owned by someone else (like a clip taken from a movie, TV show, or song performed or written by someone else), the copyright owner could sue you at any time. They don't have to warn you first, they don't have to use the Content ID tool, they don't have to send a DMCA takedown notice.
2. As far as we know, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren't typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. But no lawsuits against YouTubers by Hollywood studios or major record labels. That's right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought lawsuits against YouTube users. "Guide to YouTube Removals," Electronic Frontier Foundation.

The system seems to be sorting itself out little by little. Copyright laws haven't changed, but video creators haven't been slapped with massive lawsuits either. (Instead, the lawsuits have gone to YouTube, which luckily has the financial resources to deal with them. "Judge Throws Out Viacom Case Against YouTube.")

People who upload content created by someone else (e.g., movie and TV clips, recorded music) seem to run the most risk of getting it taken down because there are usually multiple rights holders involved and any one of them can flag the same video. People who upload videos of themselves singing songs they didn't write also have been asked to take down videos, but there seems to be less of a problem here. In fact, it has been widely reported that some artists have launched their careers this way. Given the apparent success of such a tactic, many artists upload themselves singing covers so they are more likely to turn up in YouTube searches. This is what I will focus on for the rest of this blog post.

Young amateur singers often sing other people's songs in "cover" versions. The first video Justin Bieber ever posted on YouTube was his cover of So Sick, a song by Ne-Yo. But Bieber, at the time only 12 years old, probably didn't get copyright permission to post his cover of Ne-Yo -- or, for that matter, any of the other artists Bieber later covered. The lack of express copyright permission creates a precarious gray area -- is a noncommercial cover video posted on YouTube infringing or fair use?

Hard to say, given how open-ended the fair use standard is. In these gray areas of copyright law, YouTube sometimes yanks down the videos, as it did with all of the videos of the amazing fifth grade PS22 chorus from Brooklyn. The chorus covered numerous artists, such as Tori Amos, Fleetwood Mac, Jay Z, Rihanna, and Kanye West, and posted the videos on YouTube -- all apparently without copyright licenses. Only after much pleading from the chorus's director, Gregg Breinberg, did YouTube reinstate the PS22 chorus's videos. Of course, YouTube did the right thing, as Tori Amos, Stevie Nicks, and other artists later praised the chorus's singing of the respective artist's song. "Edward Lee: On Being Justin Bieber in the Age of YouTube," Huffington Post, 7/1/10.

Traditionally when artists want to cover someone else's song, there are well-established paths to do so.

If they want to record someone else's song, they obtain a mechanical license, usually from the Harry Fox agency, and pay 9.1 cents per song per recording (i.e., $91 per 1000 CDs).

If they want to cover a song in a live performance, a fee is collected by one of the performance rights organizations (ASACP, BMI, and SESAC). Generally the venue handles that, so it isn't anything the artist has to deal with.

If they want to perform a song in a movie or TV show, the producer generally handles that and obtains a synchronization license from the songwriter and publisher and then also pays a performance fee to one of the PROs.

For YouTube, the performance rights are handled by YouTube (although that hasn't been going all that well).

Licensing negotiations between YouTube and the German music rights group GEMA have broken down, and GEMA is now demanding that the video share site take down or block access to hundreds of works. "Music Rights Holders to YouTube: Block Our Songs," NewTeeVee, 5/10/10.

"GEMA CEO Reaches Out To YouTube."

In May, YouTube was ordered to pay [ASCAP] $1.6 million plus future payments to account for the public performance of music on the video-sharing website. "The future of embedded video will (or will not) be televised," Hollywood Reporter, 11/16/09.

The synch rights would fall to the creator of the video, which means the performer is supposed to contact the songwriter and get permission. This is pretty easy to do if the songwriter owns all the rights and is easily accessible. Send him/her an email saying you'd like to perform his/her song and upload it to YouTube. Chances are the songwriter will be quite flattered and happy to give approval.

If it gets much more complicated than that, the performer wanting permission to do the song may either not know how to get permission or may decide it isn't worth the hassle. I'm not sure if this information is correct, but this person says that publishers aren't even set up to handle such requests.

We talked to a friend about this issue at Warner/Chapell Music Publishing today... and they said that W/C has a blanket deal with YT but that some songs were on a 'restricted list' whatever that means. Not only that but they had no idea how one would go about getting specific license to merely to cover a song on YT. It's not a mechanical license, and it's not a sync license, it's basically a new type of license altogether. And this is someone who has worked for the world's largest music publisher for over five years. So the reality is, there's basically no way to do what YT requires, at least not at Warner/Chapell... (at least according to our friend). "Possible solution to YouTube's cover song 'problem'," YouTube Help, 5/3/10.

Here is a more detailed explanation from a company, Web Sheriff, hired to monitor unauthorized use of Van Morrison's songs.

As many of you may be aware – and as pointed-out by Leflaw - in order to synchronize video / film footage with an artist’s music (and assuming, for present purposes, that you are not re-arranging or adapting the artist’s / writer’s songs), a synchronization license is actually required from the relevant publishers / sub-publishers, which, unfortunately, can be a lot more complicated than you might imagine. If the publishers then seek to enforce / protect their rights on-line – some do, some don’t, others have yet to catch-up – then that’s where issues start to arise.

That being said - and in relation to Van Morrison specifically – Exile have been conducting on on-going review of these matters, specifically aimed at opening-up as many copyright exemptions for fans and YouTubers possible / feasible ... .. thereby cutting-through the publisher-red-tape with a series of special, automatic, copyright clearances. Initially, these exemptions were secured for fans performing their own, personal covers / renditions of Van songs, as well as usages that were either educational (eg. high school concerts etc) or compassiontate (such as weddings and funerals – events where, so often, Van Morrison’s music means so much to those concerned).

As part of on-going process of rolling-out these copyright exemptions – and as was the case with our friend Cooperweb - we are very happy to be able to announce that, subject simply to providing an industry standard, courtesy credit, Exile shall now also be able to provide bands with direct permission to keep their professional Van Morrison covers on YouTube (and, indeed, any other cover clips featuring Van’s music, provided, again, that the lyrics and arrangements are not changed - as this would require yet further clearances with publishers and, of course, the consent of the author himself). The text of the credit should simply say "Copyright music and lyrics reproduced by kind permission of Exile" and this should be prominently displayed at the very beginning of your description of the clip ... .. so, Mike / Shmoo and Sixstringlass, we’re glad to say that, not only will your covers no longer be pulled from YouTube, but they shall also be a very welcome addition to the constellation that goes to make-up Van’s on-line presence. Naturally, these permissions are conditional / revocable, so we would kindly ask anyone posting a cover to ensure that your clip and the accompanying wording is not rude or obscene and that it does not infringe Van Morrison’s moral rights in his music and lyrics – which, of course, would not have been the case with either Mike or Sixstringlass.

For the avoidance of doubt – and as also mentioned by Cooperweb - these permissions / exemptions ONLY apply to the use of Van Morrison’s music in conjunction with fans' and artists' own footage / recordings and NO permission shall be granted for the use of Exile copyright footage / recordings or footage / recordings that actually feature Van Morrison ; for which many thanks, again in advance, for understanding and respecting the artist's and label's wishes. "Web Sherriff and Van Morrison discuss You tube "cover" issue," Boycott-RIAA.com, 7/30/08.

If a YouTube license was similar to a movie or TV show license, it would spell out whether the song was only going to be used in this particular video, whether the video is only going to be shown on YouTube and not on other websites, whether the video can only be broadcast for a few years or forever, etc.

So let's say you skip obtaining permission and go ahead and cover someone else's song in a video and upload it to YouTube. What will happen?

Chances are, nothing.

But some people have had their videos taken down. Here are some reasons:

1. The publisher doesn't give permission. For example, musicians have been spreading the word to avoid covering songs by the Eagles because many covers of those songs have been taken down at the request of Cass County Music.

2. Fraudulent claims. If YouTube gets a request to take down a video, it does so. But sometimes the people or companies making the request don't actually own the rights. Therefore, you could protest and get the video uploaded again, but not everyone wants to go through that hassle. Here's some discussion of the matter: "So, about false DMCA claims... is there any way to *really* defend yourself?"

3. Mistakes. Sometimes videos using songs that fall under public domain, have been legally licensed, or fall under fair use have been taken down. It's then up to the video creator to argue his case to get the video restored.

... my son once got his knuckles rapped by youtube for posting his rendition of ..... a Mozart sonata movement. We got a notice that there was an alleged copyright infringement and they threatened to pull the video down. I responded that the piece was almost 250 years old and that any damn fool would know that it was in the public domain. Well, I didn't say it quite that way, but I do recall being somewhat curt. They backed off. "Youtube Cover Removed for Copyright Infringement," Piano World Digital Piano Forums, 3/30/10.

We had two YouTube videos that WMG claimed were violating their copyright. Neither were music vids, just cool islandy stuff. The audio was ambient noise (no music AT ALL) and I added a bit from the sound effects that came with our iMovie software. Absolutely nothing in it was owned by WMG.

YT removed the audio from them and sent us the notice. For months I didn't do anything (trying to stay under the radar), but eventually I decided to dispute it.

The audio has been restored on those videos. I have no idea why they were tagged. We have dozens of covers on our channel and not peep about them. "I got a little warning on YouTube," Ukulele Underground, 7/31/10.

"Use of Royalty Free music gets three copyright strikes!"

If you have three of your videos taken down, YouTube closes your account. Here's an article about a popular performer who did many covers and then had his account suspended for a week until he was able to work something out with publishers.

The suspension, Choi said, came because he did a cover of “What Wonderful World.” Covering other artists' songs, in addition to creating his own music, is something Choi said he did since his first YouTube post.

Singing cover songs like Katy Perry's “California Gurls” and Lady GaGa's “Telephone,” Choi said he had to be careful because “technically you're not supposed to do covers.”

“I do a lot of covers,” said Choi, who is Korean American. One of the cover songs got a strike on YouTube, he added.

“Three strikes on YouTube and you're out. I just had to get the publishers to retract the strikes.” David Choi Talks Fame Via YouTube, Pacific Citizen, 6/18/10.

For a lot of musicians, uploading cover songs had become a try-it-and-see approach. Put it up and see if it stands. Of course, if you get three videos taken down and you can't get it worked out with the rights holders or YouTube, you can lose your entire YouTube account.

That's the flaw in the system. You may find out that the rights holder is happy for you to upload your videos, but you may not find out until after you do and it is left standing. And in some cases what might be acceptable now might not be in the future. People who uploaded Warner Music Group content found out that when WMG broke off talks with YouTube, it began issuing takedown notices.

The ideal system would be for each video creator to run content past YouTube's system, find out if it is considered acceptable, and if not, have it barred without getting a "strike" on his/her record. And if it is okayed, then to receive a license agreement outlining the rights holder's terms so that there is some record of permission, even if the rights holder is allowed to ask that the video be taken down at some future point (with no penalty to the video creator).

Another wrinkle you should be aware of is that YouTube has been forming partnerships with some musicians who have attracted large audiences. But according to the discussions, if you have received a take down notice, you won't be eligible. So what do you do if you want to cover someone else's song, but don't want to run the risk of having it taken down? Obviously one way is to seek permission beforehand. If you can't or don't want to do that, you might consider having a fan upload such a video of you, or setting up a separate account for your more questionable videos so they don't drag your good videos down with them.

Here's advice from someone who has done quite a few cover songs on YouTube.
"Critical Info for Youtube Musicians Who Perform Cover Songs."

So in summary, here's my take on YouTube and musicians.

1. YouTube has been a great way to promote musicians.

2. YouTube knows this and has been publicizing this and expanding music programs, especially among unsigned artists. Success stories about artists covering songs are part of the news.

3. Legally YouTube must say everyone needs to post original material or get permission, but it doesn't really want to discourage users from uploading content.

4. There is no good system for fans and most musicians to obtain permission to cover songs on YouTube, so it is rarely done and YouTube and the musicians know this.

5. Content ID is an automated system to identify copyrighted material and can be set to allow varying degrees of usage without the user having to ask for permission.

6. Content ID right now is being presented to copyright holders to show they have control over their content.

7. Unfortunately at the moment users rarely know if what they have uploaded will be flagged unless it is entirely their own content (and even then they can be caught up in the system via fraudulent claims). There are on-going discussions among users about how to deal with these grey areas.

8. YouTube is likely to keep tweaking the system so that there is more transparency and fewer takedown requests.

Suzanne Lainson
@slainson on Twitter

UPDATE 8/8/10
I just found this paper which greatly adds to my above discussion.

Even beyond transaction costs, sometimes the copyright holders may actually prefer to allow third parties to use their copyrighted works, but without formal licenses. This informal arrangement gives the copyright holders effectively a “hedge.” Under the hedge, the copyright holders can “wait and see” what happens with all the different uses of their works. Some uses the copyright holder may end up liking—whether for free advertising, promotion, or even discovering new talent. For example, Nick Haley, a 19- year-old student in the UK, made an unauthorized mashup video of an iPod commercial, synched in with a copyrighted song and posted on YouTube. Once Apple saw it, Apple hired Haley to produce one of Apple’s new television commercials.

The advantage of hedging instead of granting formal licenses is that copyright holders can get the best of both worlds: free promotion and talent trolling from various unauthorized uses of their works, but also the ability to later protest other unauthorized uses of their works. "Warming Up to User-Generated Content," Edward Lee, University of Illinois Law Review, Vol. 2008, No. 5, 2008.

UPDATE 8/10/10

Record labels and publishers have already come to grips with one Google service: YouTube. In fact, they love YouTube now that they have worked through their many tussles. YouTube has taken steps to prevent the uploading of copyrighted material. It provides value by being a substitute for a good amount of piracy. It offloads IT and network costs to Google. And Vevo wouldn't be Vevo without the power of YouTube to create 90% of the video network's views. "Analysis: Will Google Music Be Good For The Industry?" Billboard.biz, 8/9/10.

UPDATE 8/12/10
Here's an article that gives a good overview of YouTube and music.
Saint or Sinner? YouTube's tricky relationship with music

UPDATE 9/6/10
Pomplamoose covers a number of songs on YouTube. According to this interview, the duo first obtains a mechanical license. That's generally done for physical or digital copies of a song and is priced according to the number of copies of the song made available. Technically a mechanical license wouldn't cover a video of them performing the song on YouTube, but perhaps taping the process of recording a covered by a mechanical license is being treated as something different than a video of someone performing a song.

... we make sure that we have all our ducks in a row. We bought mechanical licenses to all of our covers before we put them on iTunes. So it's all legit and legal. "Pomplamoose: Making A Living On YouTube," NPR, 4/11/10.