Copyright Law Entertainment Law Intellectual Property Litigation

Music Industry Goes After Cover Songs on You Tube

A group of some of the largest music publishers in the country has sued Fullscreen, one of the largest suppliers of videos to YouTube, saying that many of Fullscreen’s videos — particularly cover versions of popular songs — infringe on the publishers’ copyrights. The lawsuit was filed last week in the Southern District of New York, the Federal Court that covers Manhattan.

Recently Viacom lost a $1 billion copyright infringement lawsuit it brought against You Tube, because of the protection afforded by the Digital Millennium Copyright Act (DMCA) to sites like You Tube that allow others to post content. Under the DMCA, if a third party merely posted infringing material on your site, you are not liable, provided you comply with a notice sent by the copyright holder to take down the infringing material.

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Learning from the Viacom case, the plaintiffs here, led by The National Music Publishers Association and Warner Music Group, did not sue YouTube but just went after Fullscreen and its own George Strompolos. Fullscreen is a multichannel network, (M.C.N.), which produces its own content and uploads it on You Tube. According to Fullscreen, the 15,000 channels the company represents have a total of 200 million subscribers and draw more than 2.5 billion views each month. They kind of viewership must generate lots of income from ads that are shown on the videos.

Among the most popular MCN videos on YouTube are cover versions of popular songs, often by amateurs or semiprofessionals who have built a following online. It is one of the most popular ways to get noticed in the music industry these days (See, Justin Bieber and the guy who now sings for Journey as examples). But according to the suit, filed in United States District Court in Manhattan in August, most of these videos lack the proper permissions(called mechanical and synchronization licenses) from copyright holders and do not pay publishers and songwriters the royalties required under the Copyright Act. They also do not share any of the money earned from ad revenue.

According to the suit, the defendants “have willfully ignored their obligation to obtain licenses and pay royalties to exploit the vast majority of the musical content disseminated over Fullscreen’s networks.” Fullscreen has yet to answer the lawsuit or comment in any media stories about the filing, but in my opinion they are going to have a hard time explaining themselves. Their defense might still very well be that it in turn allows users to post directly onto YouTube so that it is not Fullscreen that is actually uploading the video, but the users themselves. But according to a NY Times article about the case, Fullscreen and another MCN, Maker Studios, announced licensing deals with the Universal Music Publishing Group in February of this year. This can be used to show knowledge on behalf of Fullscreen of its obligation to obtain licenses for cover songs, making it easier to get damages for willful infringement. Why would Fullscreen pay a license fee if it was not uploading videos directly?

What the case shows is that the music industry will do what it takes to get revenue for what folks take for granted as “free entertainment.” Remember that when you watch a music video on YouTube of a cover version of a song, the person who wrote that song (or who owns the rights to that song) is supposed to get paid and/or give permission. It might be ok to let it slide if its just you and a guitar and 200 people see it. But if your cover version of “Born to Run” or “Born This Way” goes viral, or starts generating ad revenue, expect to be hauled into court. If that happens, regardless of what your genre was before, you can be sure that you’ll start singing the blues.

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