How “transformative” does a cover need to be to avoid music copyright detection?
Music Covers & Copyright: Some Background
There’s no more appropriate way to showcase the inspiration felt from a song, than to recreate it in the context of our own creative vision. This is, of course, known as a ‘cover song’, and they certainly aren’t a new phenomenon. The online music space has become somewhat inundated with covers for as long as it’s been possible to hit "upload" on the YouTube website and, arguably, they continue to embody everything that such platforms were invented for.
What hasn’t remained consistent, however, is the legal tug-of-war between these online covers & copyright legislation. Initially, online platforms such as YouTube were less regulated from a copyright standpoint, and this leniency created a free-for-all without sufficient content regulation. However, as these platforms grew, so too did the laws governing fair use on them. YouTube introduced its ‘Content ID’ system in 2007 - 2 years after launch - and proceeding platforms adopted similar systems that allowed for copyright infringements to be flagged & managed. Representatives & teams from organizations such as record labels & publishing groups could also identify anything that Content ID missed, flagging physical copyright claims that were equally as severe.
Modern Copyright Detection Capabilities
The effect of copyright infringement detection on the ‘fair use’ of music covers was significant. For better or worse, creators found themselves receiving copyright strikes for uploading what was, in their eyes, a humble tribute to their favorite song. However, the rules were only going to become more strict and, as the user base grew on YouTube & newer platforms such as Instagram & TikTok, content regulation mirrored its growth in stringency.
The repercussions from infringing on musical copyright typically fell into one of two categories: demonetization (removing the creator’s ability to earn revenue from the video, returning this revenue to the rights-holders indefinitely) or blocking (removing the video from YouTube completely). Repeated offenses - 3 claims within 90 days - could result in a channel being removed entirely.
Fast forward to today, and the rules are only more clear & strict: YouTube states that creators are “prohibited from using content, such as a cover song, that someone else owns the copyright to without permission”. Reading this, it seems that copyright regulation is stricter than ever, and this begs the question: is it at all possible to upload covers without copyright strikes? Can a cover be considered “transformative” enough to evade repercussions? Read on to understand the relationship between cover songs & copyright strikes on online platforms, and just how all-encompassing content regulation can be.
What Does “Transformative” Mean?
The term "transformative" in the context of copyright law is complex & nuanced, particularly when applied in the context of something as specific as a cover song. Merely calling a cover a "tribute" does not automatically make it transformative or exempt from copyright infringement. Additionally, being transformative doesn't simply mean altering the original – it actually involves adding new expression or meaning to the work. Simply building the song from the ground up using similar elements, or changing elements such as pitch, tempo & lyrics, certainly does not constitute a “transformation” of the song. Essentially, leaving in any aspects of the original identity leaves the composition at risk of being deemed as an infringement. Contextual factors will play a part, too, such as:
The purpose & destination of the use (e.g. using a cover for educational purposes may be deemed “fair use”)
The nature of the original, copyrighted work (e.g. a Beatles song is far more likely to be claimed as a result of their commercial prowess).
The portion used & the effect on the market value of the original work.
Any one of these factors can completely alter the risk level, so it’s important to be cautious and offer as much new creative flair in your interpretation of the song as possible.
Can A Music Cover Avoid Copyright Infringement?
Taking the aforementioned into account doesn't exactly offer much hope to creators looking to upload covers to online platforms. So, what can be done? Well, without what is known as a ‘mechanical license’ - a license obtained from original holders, allowing you to reproduce & distribute the original audio copyright - it would be a legal risk to upload the cover. Mechanical licenses can be obtained online from agencies such as Harry Fox, or by contacting publishers directly & requesting a license for a particular song. The process may be lengthy and almost certainly will cost, so be prepared for either of these realities.
To answer the million dollar question of “Can a music cover avoid copyright strikes?”, the answer is, unfortunately, no. Every single element from the original is copyright-protected, even if it’s re-recorded or altered slightly. You could post your cover regardless, and either take your chances or expect demonetization, but these methods are risky in that they open you up to potentially having your entire channel removed in future.
Instead, as a more productive method, consider using the original song as inspiration for original works. Of course, this isn’t an ideal solution, but taking your favorite works & looking to create something similar with your own artistic fingerprint is a great way to expand your musical abilities. You’ll be able to post these originals to online platforms without any copyright restrictions.