Tuesday, August 3, 2010

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.

    51 comments:

    1. Youtube seems to be broadly doing the right thing, pragmatically. They are finding pathways to evolve the handling of cultural material to fit the changing environment. Adapting where possible, and maintaining a continually viable organism -- not attempting a sudden revolution.

      It largely maps to flat-rate systems: Youtube gets revenue according to the service they offer -- advertising mainly I suppose, then distributes it to creators according to some measure of popularity. It attaches payment where it can actually be attached given the realities, instead of wanting cultural things to be physical consumer goods fixed to physical containers -- as copyright is essentially made for.

      It does seem like one of the possible futures. It just needs the withering away of the remaining vestiges of old-media obstruction who still want to punish people for using culture.

      ReplyDelete
    2. Thanks for your comment. Originally I had thought that people were uploading unauthorized videos and either not getting caught or YouTube was conveniently overlooking them. It hadn't occurred to me until I saw the Content ID video that YouTube was creating a system that fell in between unauthorized and authorized. They can't piss off rights holders to such an extent that YouTube is shut down, but on the other hand, they don't want to make the average YouTube creator jump through so many hoops that they stop uploading videos.

      ReplyDelete
    3. I'm working on a videosong for a masters class that will be a cover of a copyrighted work. The song is not in the harryfox.com database and the writer has passed away. It's not a very well known song and has not seen much commercial success, having been recorded only by a few other artists after the original.

      I will be posting the finished videosong to YouTube and it will have a single public performance during the masters class recital on a university campus.

      Should I be concerned about copyright in this case? Does educational use cover this type of thing? Does the public performance cause any problem, even if it is on a university campus for a class?

      Thanks for your help!

      ReplyDelete
    4. The way the system works is that YouTube lets is stand unless someone claims ownership of the song. It sounds like you should be okay. It's possible that it will turn up in YouTube's Content ID system (if someone has bothered to go that far when claiming ownership), but then you will know as soon as you upload it whether someone has blocked it.

      As for a public performance of the song on campus, the school has already paid for the necessary performances through deals with whatever performance rights organizations that exist in your country (each country has their own organizations). You don't have to worry about the public performance part of it.

      ReplyDelete
    5. One of my cover songs channels received two copyright infringement strikes and the videos were removed. Not wanting to risk a third strike I deleted all my cover songs from that channel.

      Just today I sought permission to upload Buffalo Springfield cover songs to YouTube.
      Warner/Chappell told me on the phone that they were blocking all that content and would not allow it.

      So trying to get legitimate permission was a dead end. I sincerely hope YouTube can work this out. I had quite a collection of cover songs up that are now deleted.

      I am waiting for any word of resolution on this matter so I can once again upload them without worry. Are you going to continue to update your Blog on this?

      ReplyDelete
    6. Thank you so much Gilliam for sharing your experience. There is surprisingly little information out there about this.

      As for updates, yes, when I spot relatively links I will add them. I won't necessarily go looking for the latest info on the subject, but if I run across it, I will add it.

      ReplyDelete
    7. Your posting here is the clearest most complete source of info I have found and believe me I have looked long and hard for some clarity.
      I'm going to share your posting with other musicians. BTW, If you'd like to hear my original music I offer it free here:

      http://gilsmusic.bandcamp.com

      (donations accepted but not required)

      ReplyDelete
    8. Thank you for this informative page.

      What I'd like to know in further detail is how a band like Pomplamoose (whom I LOVE), is allowed to cover very famous songs (Lady Gaga, Beyonce, Mrs. Robinson, etc).... and although they said they obtain mechanical rights for the covers, they don't in fact have a "physical CD" copy of the cover song, which is where mechanical rights fall, mostly... say around $90 per 1000 copies of the cover (and you can sell it, and make money from it). They give their covers away for free, however.... they are making a killing from revenue sharing/YouTube partnership... if a cover video has well over a million views, that's around $5,000 or so just from the video views... not counting their original song sales.

      How are they allowed to do revenue sharing for covers if they're only obtaining mechanical rights?

      YouTube itself says that any qualifying partner can upload cover versions, IF and only if, they obtain full synchronization rights and performance rights.

      From my understanding, synch rights only apply to original recordings... and this can cost well over $50,000 per song!! So how do covers fit into all of this?

      Any help would be GREATLY appreciated... thank you so much for your site!

      -Chris
      internet musician
      themelodies AT gmail DOTcom

      ReplyDelete
    9. I've wondered about Pomplamoose, too. They have said they pay Harry Fox for mechanical rights, but as you have pointed out, Harry Fox doesn't provide permission for synch rights, which is what would allow them to perform in a video a song they didn't write. My guess is that they haven't obtained permission. I haven't tried to contact them about this, because if they haven't obtained permission in advance, they either have to say that they haven't (which probably wouldn't please YouTube) or they have lie about it. Of course, with the Content ID system, they can go ahead and record the song, upload it, and then find out after the fact if it has been allowed to remain.

      In terms of performance rights, I think they don't have to worry about that. YouTube pays a fee to performance rights organizations like ASCAP and BMI, so I don't believe the artists are also responsible for additional fees.

      I'd like to get more definitive answers, but YouTube is always going to say you need permission in advance even though we know most artists don't get it.

      ReplyDelete
    10. Where does a writer go to obtain permission to use lyrics? I'd like to use two lines from a Stevie Nicks song in a short story that I plan to publish in a (yet to be determined) literary journal?

      ReplyDelete
    11. You'll need to contact the publisher and obtain permission. You can, however, use the song title without permission.

      Here are some places to find the publisher of the song. Then you need to contact the publisher or copyright holder directly.

      http://www.harryfox.com/public/songfile.jsp
      http://www.ascap.com/ace/
      http://repertoire.bmi.com/startpage.asp

      ReplyDelete
    12. So far, I only post my original music on YouTube, as I don’t want to infringe on someone else’s copyright. However, I obviously do not get many hits or subscribers as nobody knows who I am. I would like to start posting cover songs in an attempt to get more people to find my channel. I would like to see YouTube negotiate an option to license cover songs with the copyright holders on behalf of those of us posting cover songs on YouTube. For example, we upload a cover song to YouTube. Then, YouTube in turn charges us the license fee for the right to keep that cover song on our channel. YouTube already offers other services for a fee, such as the promotion feature which is based on the number of hits our promoted videos get during the promotion period. YouTube could track the number of hits our cover video gets and charge a per hit fee. We have the option to take down the video at anytime once we decide we no longer want to pay for the right to broadcast our cover video.

      ReplyDelete
    13. That's a great idea. It's easy to do a recording of someone else's song, by paying a compulsory licensing fee to the Harry Fox Agency or going directly to the songwriter/publisher. But there's no equivalent for doing a video cover for Google.

      ReplyDelete
    14. This has been incredibly helpful - thank you!

      I run a small, artist-owned label for one artist. We've been in business for 20 years, have a catalog of about 25 album titles that he's done over the years. All of his recorded work is either covers (majority) or PD (public domain), and instrumental only. We have both mechanical and digital licenses for all of his recordings. He also does concerts in performing arts centers, concert halls, etc. and performance fees are handled by the venues.

      We want to post video clips of his live performances on YouTube and I want to make sure that the legalities are covered, but as you say, it is still a gray area! Not covered by mechanical or synch licenses... When you stated that YouTube pays performance fees (ASCAP, BMI, etc.) I am wondering if this would cover the video postings in this case? All the clips would be from the public performances, and be something he has already recorded. With a "buy this song" link, any sales would be generating license fees. Or do we need to start contacting publishers?

      ReplyDelete
    15. The way Content ID works, any rights holders can submit their claim on their copyrighted material and then decide what they want YouTube to do with any matches. Even if you have synch rights from the publishers for these songs, Content ID might still flag them, ask you to take them down, and then you'd have to prove you have permission to upload them. Therefore it might not be worth the effort to protect yourself from an issue that might not come up. In other words, just take your chances and see what happens.

      Along those same lines, some people have found that even when playing classical pieces in the public domain, sometimes they have gotten a notice from YouTube. I suppose their performances too closely matched a commercial recorded piece and Content ID couldn't tell the difference, so they got flagged. In other words, they got flagged for something perfectly legal.

      The fact that you are using videos from public performances probably won't make that much difference. I think it's Content ID that notes what the song is and it wouldn't be able to tell where the performance is being conducted.

      My impression is that far fewer people are running into problems now playing covers than in the past because the rights holders have learned it's to their benefit to let the videos stay on YouTube. Here's what I saw on a recent discussion thread:

      Am I allowed to play covers of songs on youtube even though the songs are copyrighted? - YouTube Help: "Copyright complaints against covers seem to be a lot less common than they were a couple of years ago, so the risk seems to be less. i don't have any actual numbers on that, but I watch mostly videos of musicians and I'm not seeing covers disappear like I used to. I have about 70 cover songs on my own channel and I've gotten only one complaint in four years, and that one was two years ago."

      What you might want to do first is contact this band, Pomplamoose. They have uploaded a lot of covers on YouTube (and have gotten lots of publicity as a result, so everyone knows that they do this). They have said that they have mechanical licenses for the songs they record, but they haven't, as far as I know, said they have sync licenses. I suspect they don't and it hasn't been a problem, but I don't know that for sure. If they can upload themselves performing cover songs and just have mechanical licenses but not sync licenses, then you're probably safe in doing so as well. And if you get a response from them, I'd love to know what they say.

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    16. Thanks! I'll let you know how this moves forward. I have to say, it's encouraging to think that common sense might be prevailing here after so many years. From a business sense, if a song sells, the composer and publisher get paid. And who's going to buy it if they can't hear it? So everybody wins by spreading the music! From an artistic sense, it's got to be incredibly satisfying for the songwriter to have his work kept alive and being paid for his original creation.

      I truly appreciate your articles - this is the clearest discussion I've seen so far on this issue, and I assure you, I've been searching!

      I'll let you know if I hear back. And thanks again!

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    17. Thanks for the article. A while back I posted a video of me singing and playing (at the piano) "I've Got You Under My Skin". Months later, it got yanked down because of Warner, and I still have one strike against my account. I thought it was okay because everyone else was doing it, and it's a couple years later and I still have that one strike. Very annoying. I'm thinking of simply abandoning that youtube account and starting a new one.

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    18. Great article, I've just noticed a recent uptick in some of our cover music being tagged for possible copyright infringement, but it being left up there. We film 2 to 3 bands a week and post their videos on our channel, but it is like waiting for a hammer to drop. I wish they would just charge a flat fee for a video you knew was a cover song. The record industry could be making a fortune in that cover music, if it's good makes you want to listen to the original. They could be making money from both sides.

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    19. What about dance recitals and school and community concerts? You Tube is a great platform for sharing video clips of songs with friends and family. I've actually decided to buy music for a concert based on renditions I've seen on You Tube. Is it legally necessary to get permission from every publisher before posting the concert or recital pieces on line?

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    20. I have heard of cases where a video has been flagged because of music playing in the background. However, the wedding video that used Chris Brown's "Forever" became a huge hit and I doubt that the owner of the video obtained permission before posting it.

      Posting a concert where students are performing a song is they didn't write is the same as any musician performing someone else's song and uploading the video. Rarely do these musicians obtain permission from the songwriters and/or publishers to do so and rarely are they asked to take down the video, although technically they are supposed to do so. But there are no easy channels to do so, so most people take their chances and hope the songwriters will be flattered.

      My advice would be to go ahead and upload videos of whatever dance recitals and school concerts you have. Google's Content ID will likely recognize the music and check to see what the copyright holders want to do and I'll bet there won't be a problem.

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    21. hey great article, i'm wondering though how do you contact the songwriters or publishers in order to ask them if you can have permission to cover their song, because I am starting a youtube channel and to get views i'm starting with doing song covers then going to move onto my own stuff, i'm wondering though if i use the original instrumental and sing the original lyrics, will the video definitely get flagged and removed if I do not get permission to use the lyrics and instrumental?

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    22. If you are planning to cover a song that has been recorded by someone on his or her own label, you might want to shoot that person an email and ask if you can cover the song. The person is likely to be flattered and say yes.

      If it is a famous song, you'll likely have to deal with a publisher, who may or may not give permission for what is known as a synchronization license (the right to use a song in a video, TV show, movie, etc.). Here's one place to check to see who the songwriter and/or publisher is. HFA Songfile Home Page

      There is no set fee for a synch license. The songwriter and/or publisher might give you free permission, or might ask that you pay a lot of money. This page explains the process in more detail. FormSynch

      While legally anyone who makes a video of himself/herself performing someone else's song is supposed to obtain permission, most people who make YouTube videos don't obtain permission. The YouTube Content ID system checks each video as it is uploaded, and if a song publisher or songwriter has said to YouTube to flag any unauthorized use of their songs, YouTube will. But most songwriters/publishers don't ask that their songs be flagged.

      So, based on what so many other musicians have done, you can take your chances and see what happens.

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    23. Thank you for an indepth and thought-provoking "take" on copyright and YouTube. :) Very informative.

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    24. I received a notification about one of my songs on youtube as an "infringement on copyright"
      I'm singing a cover song with my own musicians.
      However it says I don't need to take any action
      I'm thinking I should remove it if I've been flagged but I would really prefer to keep it.
      What are the chances of getting sued or is it just a matter of getting one strike from youtube?

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    25. Good question. Let me see what I can find. Getting sued seems very unlikely because copyright holders have not gone after individuals, but let me see what people are saying since I wrote the article.

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    26. Good info here. Maybe you can help me. I have some videos I would like to post on youtube. The videos show me driving through mountains and listening to "Little Feat" on the car's CD player. Each video contains one complete song. Would this be a violation? In the past, I have done this with verbal permission from the "Ozark Mountain Daredevils". They said they love it when people do that. What's the best way to get permission if you have to back it up to youtube at some point? Thanks for any advice

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    27. Great article. As many others have said, this is the most comprehensive article on th subject. I do have a question.

      What about posting guitar tutorials of popular songs. I have posted a couple of tutorials of me showing how to play songs on th guitar. I am not actually playing along with the music. Just my guitar.

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    28. Sorry for the slow response to the recent questions. I've been busy with other projects, and Google has been rapidly sorting out how it plans to deal with cover songs. Google is starting to work the publishing side from two different approaches. It has cut deals with publishers and songwriters so that they can share in any advertising money that the videos using their songs generate. And today Google just bought a company that makes sure songwriters and publishers get paid.

      Why Google Just Bought A Company That Helps Musicians Get Paid: That's exactly what RightsFlow does. Musicians who want to use or cover a song pay a one-time fee of $15 per song. RightsFlow makes sure that money flows back to the right people.

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    29. Great article Suzanne! I have about 835 videos posted on YouTube, many from national acts doing their own original songs and many from local acts primarily doing cover songs. I received my first strike earlier this year when I posted three horrible videos of Prince performing live and New Power Generation (NPG) made YouTube remove them.

      More recently, one of my favorite local bands from Lynchburg, VA has asked me to remove 123 videos that I shot of them, with their full permission, over the past three years. I had already removed a few at their request due to performance issues, but now they want them ALL removed and have told me that these songs, written by Hendrix, Clapton, Led Zeppelin, Blue Oyster Cult, Tom Petty, Rush, Ted Nugent, Golden Earring, etc. are their intellectual property. I know I should do the artist's bidding, but legally am I required to remove all of the videos? Thanks.

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    30. If you didn't write the song and you haven't obtained permission from the songwriter and the publisher, you don't have the legal right to upload the videos to YouTube. Normally it isn't a cover band that asks you to take down videos of them performing songs they didn't write because they have permission to perform those songs in their live performances. They are allowed to perform those songs because the venues where they are performing them have most likely paid a blanket license to ASCAP and BMI, and those organizations then pay their members (songwriters and publishers).

      YouTube is working out a deal so that these same publishers are going to be paid whenever their songs are YouTube (sounds like a blanket license similar to what the venues pay), but as far as I know, YouTube hasn't published the details yet to let videographers know they are now free and clear in regard to the use of songs in their videos.

      It sounds like band that is asking you to remove those videos can't claim copyright on those songs they are singing because they didn't write them. So I suppose you could ignore their request on those grounds and wait to hear from the songwriter/publisher.

      Now whether or not they can ask you to take down the video because you don't have the right to upload video of them performing falls under another category. If you already got permission from them, then presumably that is sufficient proof to show YouTube if you get a take down notice coming from the band.

      If you haven't gotten permission to video tape the band and upload the video, it falls under bootlegging. There is something called an "anti-bootlegging statute." I haven't gone through all the legal discussions about it, but it has been contested in court and revised, etc. But again, if the band gave you permission to tape their performances, you may have legal grounds to let those videos stand for the moment. Keep in mind, though, that taping their performances isn't the same as getting permission from the songwriters and publishers for tape the songs. That is what YouTube is trying to fix.

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    31. Thanks for your reply. I unlisted the videos until I get a reply from Mark Miller, songwriter, lead guitarist and vocalist, but I don't think this would come under the category of "bootlegging" since Mark initially gave me explicit verbal permission to video every performance, specifically requested me to video The Mark Miller Band opening for The Doobie Brothers and specifically asked me for a DVD sampler containing five or more videos for distribution to venues and other interested parties.

      Here is a link to one of the videos in question. Even though it is listed as "Private", I believe that you can view it from the link. As you can see and hear, the bar is dark and there is a lot of crowd noise, which is what Mark objects to.

      http://www.youtube.com/watch?v=_7z_wEkEBK8

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    32. I will check it out as soon as I can. It sounds like the band is being overly cautious and you should be in the clear. Their concern about them being videotaped playing songs they didn't write should be addressed shortly by YouTube. That's why YouTube is cutting deals with publishers. And if you have permission from the band to tape them playing, then whatever copyright issues concerning their appearance on video should be addressed with their permission to you. They don't own the copyright for the songs, only for their performance of the songs. If they give you permission to tape that, then you should be covered. The band is already covered for the live performance in the venue because the venue pays ASCAP/BMI/SESAC for the right to have music in their venues. And YouTube also has a deal with ASCAP/BMI/SESAC to play music, so you needn't worry about that part of it.

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    33. To add to the discussion, I recently uploaded an acoustic cover (which I painstakingly arranged myself, haha) of a commercially successful song, Sigh No More by Mumford & Sons, and within 24 hours it had been tagged by Content ID. The notice informs me that I need to take no action, but that the video might appear flanked with ads/etc. I suppose this sets me as a sort of 3rd party affiliate to Universal Music, where my video is bringing them ad revenue. Had I obtained a mechanical license, perhaps I wouldn't have to line their pockets, but I'm not sure where that would put me if I was making my own ad revenue from a cover video with only a mechanical license. More questions!

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    34. The short answer is that no, you wouldn't be able to get ad money unless you have partner status on YouTube, which only goes to people who have a YouTube channel and who upload enough original material to qualify. (Supposedly no one who covers songs qualifies for partner status, but I know that isn't true. There are YouTube partner musicians who have uploaded cover songs. But I don't believe they get the ad money for those videos.)

      The longer answer is that if you have partner status, and if YouTube considered you eligible for ad money for that video, you might still need to split the ad money with the songwriter and/or publisher. You'd own the copyright on your recording of the song, but they'd still own the copyright on the song itself. (However, I haven't seen anything on how Content ID divides up ad money on videos where Content ID identifies multiple copyright holders all claiming rights to content in videos. I should probably do a Google search to find out what, if anything, has been said about that.)

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    35. Great article! It's the most useful thing I've found on this in a lot of searching, so thank you!
      I have three questions that it's got me thinking about.
      Firstly, if I was to obtain a mechanical license and then upload a studio recording of a cover song with just a single image for the entire video would that be covered by the mechanical license?
      Secondly, similarly to my first question but instead of a single image it would be a lip-synced style video where the video shown wasn't recorded at the same time as the audio that is being heard. Would that be covered by a mechanical license as the video being shown isn't the actual performance that's being heard?
      Finally, where abouts do digital licenses (and more specifically, interactive streaming licenses) fit into all of this?
      Thank you again!

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    36. Great questions. I think you'd be pretty safe in the first scenario, although I'm not sure from a legal point of view if streaming a song against a fix image would fall under streaming or under a video. I've not seen anything that fine-tuned yet. What could happen is that YouTube's Content ID might flag the song for the publishing/songwriting copyright, but if you countered by producing the mechanical license, that might be enough. These are grey areas that I don't think have been fully tested.

      In the second case, the Content ID probably wouldn't be able to distinguish whether the lip synching matched the audio or not and would just flag it the same as the above. If you have recorded the song yourself and have gotten the proper mechanical license, no label has any claim to the copyright. So again, it's a publishing/songwriter issue. You've already obtained the necessary mechanical license, so the recorded aspect of it is covered. Whether the publisher/songwriter expects additional money for it being in a video hopefully will be taken care of with YouTube's new arrangement with publishers.

      As for digital licenses for interactive streaming, this is what I have seen from one company that issues them. "Limelight does not offer licenses for the following uses: YouTube (this requires a synchronization license secured directly from the publisher)." So it treats streaming differently than music in videos uploaded to YouTube.

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    37. Is there any way you can get charged with a case if you use copyright on youtube ? Commercial Or Promotional use, or both ?

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      Replies
      1. Yes, in theory, if you haven't obtained permission to use the music, you can be charged with a copyright violation. However, people who upload videos seem to be pretty safe. What will likely happen is that YouTube will use Content ID to check the music you use and if the copyright holders have asked YouTube to take down that music, it will. And you will get a notice that you can't use the music. Keep in mind that there are multiple copyrights. The songwriter/publisher hold copyrights on the song (that's what you will be dealing with if you are performing a song you didn't write that isn't in the public domain). If you are using music someone else recorded, then those who recorded the music also hold copyrights.

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    38. Congratulations, this is the site with more in deep information I found on internet about covers in Youtube and Synch licenses requirements.

      I have read last days that Youtube have signed agreements with several publishers in order to share the advertising incomes and facilitate post covers. Does it means that the publishers are easing post covers?

      I would appreciate your opinion about what I have decided to do with a cover that I recorded and filmed a videoclip of Jumpin Jack Flash of The Rolling Stones: publishers ABKCO RECORDS.

      I play music as a hobby and I think that ABKCO will not give me a Synch License because they are a business not charity, I can promote my sound with this cover but they get nothing back, I think they will charge me a lot of money or probably, tell me that they will deal through a records company that represents me in my country (Spain). Am I right or wrong?

      Then I think I will post the videoclip in Youtube and write in comments who is the publisher, writers and that I am doing it as a tribute of the 50th Anniversary of The Rolling Stones.

      If Youtube delete the videoclip I always can deal with the publishers to get the synch license?

      I see a problem and is that I filmed the videoclip with professional quality and they may think that behind it is a company that can pay money.

      The cover is very good, I think they will like it.

      I would appreciate your opinion about my intentions and thank you in advance.

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    39. Hi

      Many thanks for this article!! Extremely helpful and definitely the clearest information on the topic Ive come across. Im based in the UK- and when I contacted PRS for Music (copyright management) regarding cover songs on You Tube- they said that as long as it was put on You Tube and not elsewhere they were sure it would be covered by their license. Although honestly their information was a little grey- and often changed between phone calls!! It seemed strange that even the licensing company wasnt altogether sure- and consequently frustrating for a musician trying to do things legally and respectfully to other artists. I think Id be devastated if my channel entries were seen as enfringement and caused an artist offence- having checked it all out with PRS and hoped to be doing the right thing.

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    40. Thanks for the article, it really helped! i'm not sure if i missed or skipped any sections, but i'm left wondering if song remakes would be considered differently under copyright infringements. If i took a popular songs instrumental and remade it with my own lyrics would i still be infringing copyright terms?

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    41. Copyright still applies to the music, even if there are different lyrics. So YouTube's Content ID might still pick up the song and identify the original songwriter and/or the publisher as the copyright holder.

      However, I think you should be okay uploading such a video for two reasons:

      1. Many copyright holders tell YouTube to go ahead and let the video stand because they can collect money from whatever advertising YouTube adds to those videos.

      2. YouTube has signed agreements with some music publishers so that if their music is used, they get paid. You're covered, then, if YouTube has an agreement with the publisher of any music you record. However, I don't think there is a comprehensive list of publishers who have signed the agreement. You may not know if you are in the clear until you upload the video and see if it stays or you get a takedown notice.

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    42. Wow, this is overwhelming. Ok, I make instrumental covers of songs from Broadway musicals. The thing is, I'm not trying to "get away with anything". I'm HAPPY to pay for licensing and all costs associated with creating them legally and above board.

      The thing is, it's SO confusing. If I pay for a license from Harry Fox agency, that's great, but it doesn't feel like it's enough. You know when youtube asks for "proof of rights to use third party content", it would be great if these publishers, performance rights organizations and the likes all got together and had a standard "way" that we could license, get permission, and then youtube would just receive these and all would be good to go..

      How can I actually go about getting permission? The publishers are "too big" to answer the inquiries of a little guy.

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      Replies
      1. To make a recording of a Broadway song, you will need to pay a fee through Harry Fox, and that will be easy to do.

        To cover a song on YouTube, it gets more complicated since that involves a second type of licensing fee, a sync license. I'm guessing that the publishers of Broadway songs already have an agreement with YouTube, so they will get paid if you upload those songs. Of course, that would mean that whatever ad money the video makes would go to them rather than you.

        If you want to track down the publisher and ask if you have permission to cover the song on YouTube, finding out the publishers of those songs should be pretty easy since they aren't obscure. The usual places to look are ASCAP, BMI, and Harry Fox.

        You're right that it's all complicated and it would be nice if there was a one-step process.

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      2. Thank you for your response. Does licensing the cover through HFA, imply that you therefore have permission to make said cover?
        Or do you still have to request permission, and THEN you can pay the licensing fee and proceed with creation of the cover?
        Also, these instrumental covers can be used as "karaoke", because they are just instrumentals. If one of my listeners wanted to use a track to create their own recording, they'd have to obtain permission from the publisher, and also permission from me (as the "producer"?)

        Or, would they pay HFA the mechanical license, even though they're using my recording of something I also licensed... :D my brain is spinning...

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      3. You can take care of licensing for a recording directly with Harry Fox. It's a standard rate based on how many copies you plan to make. You don't need to obtain additional permissions. Pay Harry Fox a fee and you're done. If you decide to make more copies than you have paid for, you go back to Harry Fox and pay the extra amount.

        If someone spins your track at a venue, the venue pays a performance license to ASCAP, BMI, or SESAC. That money goes to the songwriter and the publisher. You don't get any money from that.

        If someone wants to use your recorded instrumental music in a song they are recording, they do need to contact you for permission to do that.

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    43. Copyright strike basics: How to resolve a copyright strike and restore your account’s good standing: https://support.google.com/youtube/answer/2814000?hl=en

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    44. I recently did a gig which contained a cover. the venue plans to makethe entire gig available on a pay per view basis. Am i legally liable? We wik get some royalties but did not film the gig or distribute it (the venue will)

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    45. Thanks for sharing nice views .i like it. thanks again. visit more info Youtube Support and Call +1-800-231-4635 USA (Toll Free).

      ReplyDelete