March 6, 2018

Are Cover Bands Copyright Pirates?

Image Authored by: Marc J. Belliveau Posted in: Intellectual Property

When your favourite local cover band performs an exact rendition of Brown-Eyed Girl, Sweet Home Alabama or Wagon Wheel, are they infringing the copyright of the song’s owner? Can cover bands and tribute bands be accused of “piracy” like the online file sharing community? Unfortunately, the current answer in copyright law is “yes” to both questions.

Copyright Act

As a starting point, under the Copyright Act, a reproduction of any work, such as performing a well-known song in a nightclub, without the permission of the owner, is infringing the exclusive rights of that owner. Just like photocopying an entire book, photographing a painting, or recording a television program is copyright infringement, so too is playing another person’s original song in its entirety without consent.

Copyright protects original works of authorship which are fixed in a tangible medium of expression, including literary works, musical works, dramatic works, choreographic works, artistic works, software, audiovisual works, sound recordings, architectural works and so on. It excludes ideas, procedures, processes, systems, methods, principles and facts. Once the government-granted copyright monopoly expires (remaining life of the author plus 50 calendar years), the work enters the public domain and the owner’s exclusive rights cease to exist.

Copyright Collectives

How do the cover bands get away with copyright infringement?

The answer lies partly with copyright collective societies, who obtain exclusive rights from owners who join their society and enforce them under the Copyright Act. These rights-holder organizations “tax” music venues under a licensing tariff system approved by the Copyright Board. SOCAN (Society of Composers, Authors and Music Publishers of Canada) has more than 25 licensing tariffs to collect money from restaurants, nightclubs, banquet halls, karaoke bars, exhibitions, circuses, fitness classes and many more. It claims to represent the entire world’s musical repertoire, but that is hardly possible. The other music collective, Re:Sound has fewer tariffs than SOCAN but collects its licensing fees on behalf of recording artists and record companies. A venue often has to pay both SOCAN and Re:Sound for the permission to play the same recorded and live music. In the US, the corresponding performance rights collectives are ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music, Inc.).

So, when you hear a band play a cover song in a bar which pays its SOCAN and Re:Sound tariffs, the rights to play live and recorded music, as obtained by the venue under the license, effectively permits the bands to play the material in the repertoire covered by that license. It doesn’t matter whether the cover band is getting paid by the venue; the live reproduction of the song is covered by the scope of the license from the collectives. Presumably, the collectives are content to get paid by the venue and mercifully do not go after the cover bands for payment as well. In turn, the collectives distribute the royalties that they have collected from venues, to the songwriters and publishers (SOCAN) and to the recording artists and their record labels (Re:Sound).

If the venue is not licensed by a collective society or, assuming it is licensed but the cover song is not part of the collective society’s song repertoire then both the venue and the performer are technically jointly liable for copyright infringement, subject to any available defences they may have under applicable law. The reality, of course, is that the actual copyright owner of the song is unlikely to find out about the infringing activities.

Everyone loves Covers

Musical artists who cover popular songs rarely consider their performance as infringing, even though they are profiting from the unlicensed use of the original artists’ creative skills and meticulous studio work. Many performers see the cover song vehicle as merely paying tribute or homage to the musical work in question, particularly when the performance is without compensation (such as open mics, battle of the bands, etc.). The audience enjoys hearing what they know from mainstream pop media sources and, to some extent, the cover band is promoting the song on behalf of its copyright owner. The live cover version is no substitute for the original and will not negatively affect sales of the original. In sum, covering songs is socially acceptable and should not have to carry the stigma of being unlawful.

Thus, the better societal question might well be: since everyone does it and everyone likes it, should covering songs in a live setting be a lawful activity under copyright law?

Fair Dealing

Copyright is concerned about finding and maintaining a balance between the copyright owner’s right to control the use of protected works and the public’s right to make certain uses of those works without the owner’s permission.

Therefore, when a copyright owner sues an infringer, the infringer has various defences available. Those defences are called “user rights” in Canada, namely the rights of persons to use a protected work in a fair manner.

In the US, the copyright “user rights” concept is called “fair use” and is grounded in that nation’s constitutional principles of free speech. Our Canadian copyright law calls it “fair dealing,” and in contrast to the US, limits its applicability to specific enumerated allowable purposes. Our courts have yet to infuse our doctrine of fair dealing with fundamental Charter principles of free expression, however, that day will surely come.

Parody and Satire

When the Copyright Act was amended in 2012, two new categories of fair dealing copyright user rights became fully enshrined into Canadian law: Parody and Satire. It wasn’t always the case. While parodies and satires have been historically used in great Canadian comedy programs like Wayne & Shuster, SCTV, Kids in the Hall, Codco and This Hour Has 22 Minutes, a 1996 Federal Court judgement effectively held that a parody was not a valid defence to copyright infringement. The 2012 copyright amendments, by adding a specific reference to parody, corrected that “bad” decision and modernized the law to be what it should be.

Parody as a Tribute

One need only recall the humorous musical parodies created by “Weird Al” Yankovic. His cover versions of major hit songs were both parody and satire. Under US law and its fair use doctrine, he did not have to seek permission for his parodies and was never sued for any of them. He did, however, seek permission from artists, to maintain good relations, and most of them agreed to let him proceed. Under Canadian copyright law, however, his parody defence would not have been available if he had been sued for infringement because, until 2012, parody was not an allowable purpose in Canada.

Freedom of Expression

Let’s revisit the most famous US case that considers parody as a defence to copyright infringement. In Campbell v. Acuff-Rose Music, Inc., a rap group covered Roy Orbison’s Oh, Pretty Woman as a parody without obtaining permission. The court found that the cover version was not infringement even though it had sold over 250,000 copies. The profit motive of the rap group and the commercial nature of the cover were not an automatic disqualifier. The cover was held to be a parody and therefore not infringing the original. Although every case must be considered on its own circumstances, the US doctrine of fair use conforms with fundamental rights of free speech and society’s interest in individuals having access to knowledge and creative works.

In a recent Canadian case (United Airlines, Inc. v. Cooperstock), involving a gripe website, the Federal Court considered the meaning and scope of the parody purpose under fair dealing, quoting at length from Campbell v. Acuff-Rose Music, and ruled that parody “should be understood as having two basic elements: the evocation of an existing work while exhibiting noticeable differences and the expression of mockery or humour.” As such, the court was effectively limiting the meaning of the word “parody” to a critical “mocking” purpose. Does a parody necessarily have to criticize the original? Is there room within the scope of guaranteed freedom of expression for “non-critical” parody, such as paying tribute or homage to the original work?

Review of the Copyright Act

One of the other amendments made to the Copyright Act in 2012 was the inclusion of a five-year review process. That review process is now due, although the government has not yet indicated when it will begin or how it will unfold. One obvious amendment would be to add “tribute” (or “homage”) as another allowable purpose for fair dealing defences. It would permit non-critical reproductions to be made if they are made fairly. The fair dealing analysis would still be applicable, as to whether the tribute was indeed fair, however, courts would not have to stumble on the initial threshold question of whether a parody must inherently be a critical one, mocking the original, in order to assess its contextual fairness. Until then, Canadian cover bands will continue to be viewed as pirates under our copyright law.

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