Acoustic Covers of Copyrighted Music - Fair Use?

John W. King · May 11, 2015

Hello all,

While I was composing music for my short film, I came across an interesting song that I eventually covered with an acoustic guitar. I was so amazed by how great my cover sounds and fits into my film, that I would like to keep it; however, the original song is copyrighted...

So my question is, could I implement my cover to the score of the film?

A few things to note:

-I will be submitting this film to various film festivals

-I did not sing any of the original lyrics (nor any lyrics at all, for that matter), I simply strung a guitar to the same tune as the song

-If this helps any, the song I covered was "El Condor Pasa" by Simon & Garfunkel

Thanks guys,

John

Phil Rhodes · May 11, 2015

Unfortunately, the only good advice anyone can possibly give you is to consult a lawyer, which will almost certainly cost more than licensing reasonable-quality library music.

P

Stuart Brereton · May 11, 2015

It would probably be simpler and cheaper to apply for a festival license to use the original track. You've already breached copyright by recording your own version of the song, so now you would have to pay for recording rights as well as performance.

As Phil said, consult a lawyer.

Matt Sezer · May 11, 2015

There are two copyrights on any song. One is for the composer and one is for the performer. You'd still have to pay royalties to the composer if you use a cover version.

Fair use is something completely different. It's never definite permission to use copyrighted content; it's a defense based on president from prior works and established industry best practices. I can't tell you for sure what is fair use, I'm not a lawyer, but the way I think of it is like quoting a passage from a book. If I quote a two sentences from a 1,000 page book to make a point about historical context, and those two sentences are the smallest amount that I need to make that point, that in theory is fair use. Apply that idea to film and you should have your answer.

As far as festivals, you can often get away without clearing copyrights. However, you'd look extremely unprofessional if you got caught, especially if you sign something that says you take responsibility for it, which I know some festivals make you do.

Anyway, I hope this helps.

Mark Dunn · May 11, 2015

You might get a minor piece of music past a festival, but S&G? Not a hope.

Brian Drysdale · May 11, 2015

The song has a complex history, so you'd need to check out a clearance. The composer's copyright is probably still in place.

http://en.wikipedia.org/wiki/El_C%C3%B3ndor_Pasa_%28song%29

John E Clark · May 11, 2015

Hello all,

While I was composing music for my short film, I came across an interesting song that I eventually covered with an acoustic guitar. I was so amazed by how great my cover sounds and fits into my film, that I would like to keep it; however, the original song is copyrighted...

So my question is, could I implement my cover to the score of the film?

A few things to note:

-I will be submitting this film to various film festivals

-I did not sing any of the original lyrics (nor any lyrics at all, for that matter), I simply strung a guitar to the same tune as the song

-If this helps any, the song I covered was "El Condor Pasa" by Simon & Garfunkel

Thanks guys,

John

While not a lawyer, nor have I played one on TV... my advice is 'don't use anything, until it is at last 115 years old, that would be pre-1900, and had been published on paper before that date (not recorded on some oldtimy record or the like...)'.

There are a number of rights applied to music. There are the lyrics, the notes on a page, the performance, and in the case of previously recorded music, there's the performance of that band/orchestra/singer/etc.

None of these rights are easy to determine, since there is no 'nickelsnatcher' organizations that cover all these rights. There is ASCAP/BMI for recorded music, by musicians that have been produced. But not everyone, especially these days, has their 'label' setup with these entities.

Further, to have music playing at the same time that a movie is displaying... that's a different right than 'performance', live or recorded, and is even more obscure than the licensing for performance or play back to the public...

I'd recommend getting a musician to write music/lyrics that you have a signed copyright transfer/license to use.

If the melody is from some 'traditional' source, and you can document it's Public Domain status, then a composer should be able to orchestrate/arrange the melody in to something useful to your purposes...

On the the other hand, you can recover those ancient tortured memories of highschool band, piano lessons or the like, and write your own arrangement.

Edited May 11, 2015 by John E Clark

Mark Dunn · May 12, 2015

Coming as i do from a country where litigation isn't the national pastime, feel free to disregard, but I get the impression that if you intend to rely on fair use you'd better have a few kilobucks for lawyers handy for when the rights holders come after you, win or lose.

In other words, being right still costs if someone thinks you're wrong, or even if there's money in the possibility of your being wrong.

Edited May 12, 2015 by Mark Dunn

JD Hartman · May 12, 2015

Hello all,

While I was composing music for my short film, I came across an interesting song that I eventually covered with an acoustic guitar. I would like to keep it; however, the original song is copyrighted...

-I did not sing any of the original lyrics (nor any lyrics at all, for that matter), I simply strung a guitar to the same tune as the song

Thanks guys,

John

I think this may explain it: https://www.legalzoom.com/articles/what-are-derivative-works-under-copyright-law

Aapo Lettinen · May 12, 2015

I've been told that generally anything which is similar age or newer than Mickey Mouse is and will be always copyrighted in Western countries. That's obviously because Disney company does not want Mickey to go public domain and therefore makes sure the copyright laws will be updated accordingly.

Of course there is other companies and entities also but Disney is maybe the biggest one and therefore very influential in this regard.

I've understood that in U.S. the music copyrights are usually very dispersed and permissions may be therefore very difficult to get.

Here in Scandinavia we have copyright organisations which the copyright holders give rights to represent them and you will make the arrangements with these organisations and don't usually need to deal with the copyright holders directly. If you are using Finnish or Swedish music for example for a Finnish short film it is usually enough to deal with 2 organisations to get the permissions (you will get them for a nominal fee for most uses), you don't need to deal with for example 20 different copyright holders separately to get the permission and pay separately to each one of them

Edited May 12, 2015 by aapo lettinen

Aapo Lettinen · May 12, 2015

I suspect that just like in most of the other western countries, you'd need permissions from the music publisher and the composer or the companies representing them. I don't believe that would be free but it does not necessarily cost that much if they like you and your film :)

Miguel Cordeiro · May 12, 2015

For this you will have to pay rights to the composer of the original melody, wich could be a person or a label depending on the contract.
If you approach the label directly they should be able to inform you who has wich rights.

I know that here in Portugal you could just change a chord and probably be done with it as it's a different version and it would be very unlikely to stand up on court because even tough it's similar chords, they're different, but i don't know in the states.

You could just book a lawyer and have all your doubts cleared, maybe it's worth the money if you need music frequently?

John E Clark · May 12, 2015

The song has a complex history, so you'd need to check out a clearance. The composer's copyright is probably still in place.

http://en.wikipedia.org/wiki/El_C%C3%B3ndor_Pasa_%28song%29

The composer, Daniel Alomía Robles, died in 1942, so, corporate copyrights aside, the usual formula is Author's Life + 70, would put this in the Public domain in 2012.

One would have to use the original arrangement/orchestration published in 1913, as a basis for a derivative work...

And needless to say, due to the popularity, one would need a bevy of Pennsylvania lawyers reviewing all the legalities to get a clearance.

And even then, someone can still sue, such as whoever holds whatever copyrights on the Simon and Garfunkel version...

The Sonny Bozo/Mickey Mouse legislation that is now in place in the US, confuses many questions on Public Domain vs Copyright, even if one knows who wrote the work.

Edited May 12, 2015 by John E Clark

Mark Dunn · May 12, 2015

That's a no, then, in the US at least, for someone who doesn't want to spend more on lawyers than he ever did on the film.

JD Hartman · May 12, 2015

Find some public domain stuff or get a local musician/composer to create something for you in exchange for a screen credit.

Bill DiPietra · May 12, 2015

There are two copyrights on any song. One is for the composer and one is for the performer. You'd still have to pay royalties to the composer if you use a cover version.

Don't forget the publisher...