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Can someone give me a crash course in the copyright law surrounding VGM covers on YouTube?


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Doing a VGM cover song on YouTube, without monetizing, is *probably* fair use. It's not very different than what we do here at OCR. The fact that there's a video attached doesn't change much, unless you're using a lot of game footage, trademarked characters, etc. Again, still probably fair use, but maybe slightly murkier in that case. Either way, it's not something I would spend much time worrying about if you're not monetizing or selling the music.

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My understanding is that covers aren't fair use since they're derivative work. Getting a mechanical license allows you to publish and sell covers, where a sync license allows you to do the same for videos. At the end of the day, every company's terms of use varies though :)

 

Fair use is basically an affirmative defense to copyright infringement. Whether something is fair use or not depends on four factors which are evaluated on a case-by-case basis. These factors include how much of the original work you used, whether the new work is transformative, whether it's a commercial use, etc. You can read more about the factors here.

 

Therefore, whether or not a cover is fair use can't really be said with 100% certainty, but we can make an educated guess as to whether a use would be 'fair' or not based on those four factors. *Generally* speaking, the more transformative a new work is, the more likely it is that the use would be considered 'fair', but again, it really depends. I'd argue that almost any cover of a song is inherently transformative.

 

Before I get into licenses, it's important to understand that there are two copyrights in music: the copyright for the song, and for the sound recording. These are treated differently. When you produce or record a cover or arrangement of a song, provided you didn't use any material from the original sound recording, you're making use of the SONG copyright but not the SOUND RECORDING (SR) copyright. The new sound recording is yours.

With that in mind, a mechanical license is necessary to distribute a cover or arrangement because while you have the SR copyright, you don't have the SONG copyright. The term 'mechanical' in this context refers to the distribution of the work via digital / physical media. If you've created a COVER song of a work that has been made available to the public via an album or single release, you can obtain a *compulsory* mechanical license without permission of the copyright holder, as long as royalties are paid. Sites like Loudr.fm can help you with that.

 

But let me pause for a second to say that if you're distributing a cover or arrangement for free, chances are, you'd be covered under fair use. That's how we look at it with OCR. On the other hand, as soon as you start trying to sell that arrangement, you'd better get a mechanical license.

 

Now, "derivative work" is a very specific term. By and large, in this context, it generally refers to the creation of a new work that directly takes from an existing work. The most common usage when talking about music licensing would be creating a sound recording based on an existing sound recording. For example, making a hip hop track using samples from existing songs. There is NO compulsory mechanical license for derivative works.

 

Doing a basic cover is not actually creating a derivative work, but drastically changing a song (changing the "fundamental character", as the law says) might qualify. However, just because something is a DW doesn't mean that it can't also be fair use.

 

Then there's the topic of sync licensing. OK. The right to synchronize a musical work to an audio/visual medium (film, TV, video..) is an exclusive right of the copyright holder. So technically, even if you made a licensed cover song, you would need a separate license to actually sync that cover song to video. BUT, think about the following: Fair use can cover the entire scope of copyright usage. This includes sync. For example, playing clips of a movie while adding critical, educational, or satirical commentary is something done very commonly, and is often considered to be fair use. If you're making a free cover on YouTube, chances are that your use is indeed fair.

 

Also consider that there's a bit of a grey area that most copyright holders don't seem to be sticklers about. By the strictest letter of the law, even a mechanically licensed cover requires a sync license if you were to then create a video and upload it to YouTube. However, I'm not familiar with any cases offhand where a copyright holder - who is being paid mechanical royalties - has taken issue with anyone doing this, provided the video itself is original. The idea of sync licensing tends to be of more concern with for-profit TV shows, movies, ads, and video games, not YouTube, which generates minimal if any profit even for commercial videos.

 

Bottom line: I'd say don't worry about it at all if there's no money involved. 

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You're at the mercy of whatever attitude the IP holder has in regards to this stuff. The vast majority aren't going to care, but there are exceptions. Nintendo for example will forcibly enable monetization on your video and funnel all revenue to themselves. The revenue stuff I don't really care about, but it does suck that you're not given a choice in disabling ads for your viewers.

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Nintendo for example...

 

That leads into my only piece of advice: generally, don't worry, but understand even a tiny risk is much greater if you mess with the popular stuff. We all know what I'm referring to. We also know you won't get any views covering Final Fight instead. Or Legend of Kage. Just something to consider.

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