Covers, Remixes, and Compilations – Copyright in the music industry

In my last post, I talked about the gray areas of video game copyright. Now, it’s time for music to take the stage.

First, covers. These are songs which do not belong to the band that plays them, but they play them anyway. Simply put, you need a license if you plan on playing these songs in public or for profit. If you want to play it in public, odds are the venue already has a license. If you plan to make recordings, you have to pay a mechanical license (about 10¢) for each individual recording. If you wish to play a song in a video, it requires a synchronization license. However, if you wish to publish on a site like YouTube, the synchronization license is different: the copyright holder sets the price of the license. It could be as little or as much as they want, or they could simply not allow you to upload the video. For more detailed information on what you need where, this FAQ is helpful.

Second, remixes. This is a much grayer area of copyright law. A remix is when a song is altered, often by combining it with another song or by adjusting the genre of the music. Since it heavily relies upon existing music, most are derivative and require a license to use the music. However, in some instances, they are transformative (sufficiently altered, often for a different purpose than the original) and may be protected under fair use. Here is the gray area: how much must something be remixed in order to be considered transformative? In some cases, small changes can greatly change the genre of a song, while in others, large changes may not.

Third, compilations. These are the visual version of remixes, utilizing combination heavily, normally with a song or remix played alongside. Again, the question of derivative vs. transformative comes into play, with most being derivative. These often use substantially more sources than remixes, such as clips from multiple shows, images and art found online, and audio from possible multiple sources. As such, the risk of infringing copyright is higher and carries a heavier penalty. Still, shouldn’t these to some extent be considered transformative?

So. Here we have three different types of audio/video uploaded to YouTube. Each of them would be flagged by Content ID in most cases, drawing attention to it when it might otherwise be ignored or overlooked. YouTube handles the synchronization license by allowing content holders to impose ads on the videos and earning ad revenue. If they would prefer, they can block videos with their music instead. However, where does and where should they be protected by fair use? Sure, a remix may be based off a song, but if it is substantially different, shouldn’t it be its own work? How much needs to be changed, or how different need it be? Sure, a compilation takes many works and combines them, but if it is substantially different, shouldn’t it be its own work? Where should the line be drawn between creative and derivative? Rights should be protected, but so should creativity be encouraged. These questions need to be considered if systems such as Content ID are to be improved.