- July 27, 2011
- Law Firm: Greenberg Glusker Fields Claman Machtinger LLP - Los Angeles Office
The minute I’m selected to own a Nielsen ratings box I swear by Friday Night Lights that I will forever after watch all television on an actual TV at the actual time it is scheduled to air. But until that day, I’m sticking with Netflix and Hulu like the rest of America. Unfortunately, while I usually don’t mind watching commercials in exchange for free TV, on Hulu, that means dealing with advertisers who are apparently making up for the increased cost of advertising with pure, unrelenting repetition. Thus, the launching point for today’s discussion: that *%@$#$!! commercial with the lousy Beatles cover that I was forced to watch eleventy-three times on Hulu. (I’m not linking to it, for your benefit. You now owe me.)
The cover song is an interesting creature. As you’ve heard from us before, a recorded song has two copyrightable components — the recorded performance, and the composition itself (the music and lyrics). When someone wants to cover a song that was written by someone else, current copyright law calls for a small payment to be made to whoever owns the composition copyright each time a new copy of the song recording is made (e.g., for every sale). The amount owed to the copyright owner is a bit of a pittance in terms of today’s dollars, as the amount hasn’t kept pace with inflation, but that pittance can still add up to quite a sum if a sound recording goes platinum.
There are only a couple of rules you have to obey in order to get this compulsory license deal. The song has to have been already released to the public (under the authorization of the copyright holder). This means that you can’t scoop someone else’s song and record it and release it before they do (unless they say you can). Also, you have to give the copyright owner notice that you’re going to cover the song. Usually, people ask for permission, as it’s considered somewhat bad form not to, but you technically don’t have to. Finally, you can’t alter the song too much.
You’ll notice that the rule “don’t do a bad job” isn’t included among the list I just provided, much to my lament. There are some pretty terrible covers out there. In some cases, the original version is so terrible that you can’t believe that the infamous version you know and loathe is actually the second cover to be released. Some alleged covers may have been unintentional. Some covers are unexpected. And, sometimes, musicians pull the equivalent of holding themselves up by doing terrible jobs essentially covering their own songs. Of course, there are plenty of good straight-up covers, too. Some are so well-known that we may forget that the original ever existed. Some covers bring an entirely new approach to a song, and transform it in a way that moves, intrigues, or delights us. Or they are just so good that you don’t quite care that they play the song fairly close to the original. (Here are some originals for comparison.)
(Is your link-clicking finger still alive? If it is fatigued, try some chocolate milk.)
How are we going to find chaps our size? Well, that, and one other thing. The question, my friends, is this: what happens if someone rips off a cover song? What if someone just copies some earlier performer’s interpretation of a third party’s song? Can they get away with that?
The short answer is maybe not. The long answer is going to take us another 13 paragraphs.
There are some covers that are so definitive, so transformative, that the song is never again thought of the same. So when the next person comes along to cover the song, they do their version of the cover they’ve heard, instead of their unique interpretation of the underlying musical composition. They screw up the lyrics the same, transform the melody or beat or song structure in the same way, etc. Refusing to exercise a modicum (5-point word) of interpretative creativity, they instead choose to dance on the shoulders of giants that have gone before them. So the actually potentially million-dollar question is: who gets the royalties? The owner of the copyright of the underlying musical composition, or the cover band that first transformed the song (for better or worse) into what it is today?
Wait a minute, you say. I don’t believe you, you say. No one ever covers a cover, you say. That’s stupid, you say. (You’re pretty upset now. Calm down.) You complain that to cover someone else’s cover would reveal an artist’s ignorance of musical history. It would betray their sense of distinct identity, and horribly muddy the already murkying waters of musical (non)inventiveness. You say all these things to me, and, good ladies and sirs, I wholeheartedly agree that it is lame and cheap and lazy to cover a cover. But that doesn’t change the fact that any number of modern artists have paid their bills by reinterpreting reinterpretations.
Have you heard Mariah Carey’s epic “Without You”? Have you ever compared it to the original version by Badfinger? Beautiful songwriting, but not the greatest delivery of all time. You might especially notice how on the chorus of the Badfinger original the word “live” is always cut disappointingly short. It’s just not the same song (but bless their cotton socks for writing it). As great as her performance is, Mariah isn’t the one responsible for turning the song from poignant to powerful. Instead, she relies upon the work of another artist who won a Grammy in 1972 for his Complete Makeover — Poorly Performed Song Edition. Who is this forgotten treasure? I’ll give you a hint. He was Paul McCartney and John Lennon’s favorite American artist/group. John Lennon was apparently prepared to vote him for President. He and Ringo Starr got together to make the first rock-and-roll Dracula movie. Still no clue? Shame and good riddance to the old you, and long live the new, in-the-know you: it’s Harry Nilsson. Who? (Links: Grammy. Paul & John. Nilsson for President. Ringo. More.) Check out Harry’s game-changing version. Chop some onions while you listen, and don’t mind the wolves.
Let’s play again. I’ll give you a clearer example to give you confidence that this isn’t a sham. Do you remember (because I know you were watching) when Jason Castro performed “Over the Rainbow” on American Idol? And you better not have been looking at me during The Bachelor wedding when he played it again as she walked down the aisle because I was not crying. Well, guess what: Castro’s “interpretation” of this classic sounds strikingly similar to the fantastic version by the late Israel “IZ” Kamakawiwo'ole. In fact, if you’re familiar with Judy Garland’s timeless rendition, you’ll notice that Jason Castro changes up the lyrics (ruining the rhyme) in the exact same way IZ did (no disrespect to IZ’s phenomenal version). For those of you copyright buffs out there, this might sound a bit like a famous case about the phone company who planted bogus material in their white pages in order to catch competitors in the act of copying their book. And as if that wasn’t enough, Glee did the same thing. I’m not sure whether they were ripping off Jason Castro ripping off IZ, or just plain ripping off IZ, but that ukulele is a dead giveaway. At least they fixed the lyrics.
Okay. You’re on board. This is the part where I get us all riled up and rabid, ready to run to the rescue of ripped-off recording artists. (Did I really just do that?) Now you really want to know: do Jason Castro and Glee have to pay IZ for using his interpretation of an OZ classic?
In other circumstances, this would be an easy answer. Copyright owners posses the exclusive rights to make “derivative works” — meaning any subsequent work which is derived from or based on the original. That’s why artists making a cover version have to pay the original owner of the musical composition. But in, for example, the film industry, there are such things as derivatives of derivatives. So while the Transformers film released in 2007 was a derivative work originally grounded in a line of toys, it may also be based in part on subsequent comic books or television series, and it would have to get permission from whomever it borrows from. And the new and poorly-titled Transformers film is a derivative of the Transformers film released in 2007. It borrows (and ruins) newly created characters and plotlines that were originated in the first Transformers film. So you can’t go out and make a sequel to Dark of the Moon (in part because we would all throw rotten vegetables at you) unless you get permission from whoever owns the copyright to Dark of the Moon, and the film it relies on, and so on. You’d be making a derivative of derivatives, and you owe everyone along the chain.
So you’d think that music would work the same way. You’d think that, hey, when someone records a song — and especially a cover version — they’re creating a derivative work of the underlying musical composition. And maybe they are. They might tweak some lyrics, or hold out some notes, or alter the mood or structure of the song. So you’d think that if someone else copies those tweaks in their own new version, they’ve made a derivative of the derivative.
But if they’re using the compulsory license scheme established by law, there’s a crucial caveat that alters everything. The compulsory license scheme explicitly allows the cover artist to adapt the arrangement of the song, but also explicitly prohibits the cover artist from changing the basic melody or “fundamental character” of the composition. So an artist who really changes a song has violated the terms of their compulsory license, and accordingly gets no protection and probably owes someone a lot of money. And the law also expressly provides that if you cover a song using the compulsory license scheme, and don’t violate the terms of the agreement, you get no protection as a derivative work anyway (unless you get the copyright holder’s permission).
So any artist who makes a great cover version under a compulsory license is in a bit of a bind if they are subsequently ripped off. They can’t claim to have changed the song or its melody much or they lose their license. And they can’t complain that some one has made a derivative of their own derivative.
But most artists actually don’t actually use the federally-administrated compulsory license program. Instead they use a private service that does a way better job — the Harry Fox Agency. This means that most cover versions are actually not subject to the terms of the statutory licensing scheme, but instead to the terms of the license they obtained through the Harry Fox Agency. Unfortunately, that license uses similar terms — you can’t alter the melody or character of the song without permission from the copyright holder. So if you change the melody, you either get express permission to make a derivative work, or you risk a hefty lawsuit.
Which brings us to a startling conclusion: because it’s standard practice to get some degree of permission from the copyright holder, many of these artists only have to jump through a small hoop in order to make a bona-fide derivative work. Presumably, if such an artist provides the Harry Fox Agency with proof of permission when they apply for a license, the artist is securing the right to make a derivative work which is protected from future rip-offs. To the degree the interpretation represents original input, future recording artists are prohibited from copying the adaptation without ponying up some cash, despite what 17 U.S.C. § 115(a)(2) has to say about it.
So next time you think about covering a cover, think twice, and double-check whether the version you’re covering had permission to make a derivative work. If they did, you may actually have to pay off two parties. And justice is served.