Note: This article may be in English, but it refers to the German music rights and royalties landscape.
Cover songs are a dime a dozen. Whether it's a tribute to other artists, a love for the song, the desire to capitalise on the commercial success of a song, or to revive it, there are many reasons why musicians reinterpret music that already exists. Quite often, a cover version becomes even more successful than the original. Did you know that Whitney Houston's "I Will Always Love You" was actually written and sung by Dolly Parton? The cover version was a global hit and now most people think of Whitney Houston first when they hear the track title.
A cover version can also help an artist to connect with a wider audience base by bringing then to the attention of fans of the original recording. So for many artists a cover version is worthwhile and for some it is even a stepping stone for their own career.
In this article you will get an overview of the characteristics of a cover version, as well as tips on what you need to consider when releasing a cover digitally. We also look at cover version licensing from two different perspectives: when you need to get permission yourself, and when you can have a cover version of your music banned.
What is a cover version?
In the strictest sense, a cover version is a new interpretation of an existing work. But not all covers are the same. There are many ways of applying this practice, which are often grouped together under the term "cover version": from simply performing an existing song yourself, to editing it. Other practices that are similar to covering but classified differently are, for example, remixing or sampling.
Accordingly, there are also differences as to whether a musician needs permission for a cover version or can simply reinterpret and record the song without asking first.
The other way round, you might also ask yourself: Are other artists allowed to cover my song or can I forbid it? This could be relevant if you don't like the style or interpretation of other artists, or if the original work has been changed too much.
What does the German copyright law say?
The boundaries between cover version or reinterpretation and adaptation are quite fluid. The German Copyright law (”Urheberrechtsgesetz”) basically regulates what is to be classified and how - however, the legal texts leave a lot of room for interpretation.
The German Copyright law divides the use of other people's artistic material as follows (cf. UrhG §§ 3, 23, 39):
- The new interpretation has no or only an insignificant adaptation of the original work. These are "modifications of the work and its title to which the author cannot in good faith withhold his consent " and are therefore permissible. (Section 39 UrhG "Änderungen des Werkes", sentence 2)
- The adaptation or other transformation produces its own creative achievement: "Translations and other adaptations of a work which are personal intellectual creations of the adaptor are protected as independent works, without prejudice to the copyright in the adapted work " (Section 3 UrhG "Bearbeitungen"). It goes on to say "Arrangements or other transformations of a work, in particular also of a melody, may only be published or exploited with the consent of the author. If the newly created work maintains a sufficient distance from the work used, there is no adaptation or rearrangement within the meaning of sentence 1. " (Section 23 UrhG "Bearbeitungen und Umgestaltungen", sentence 1) **
How high the creative content for a cover version or adaption respectively a so called derivative work may or must be is not precisely defined and therefore leaves a lot of room for individual interpretation of this classification.
In this article, we will only be looking at what you have to consider when making a cover version as a simple reinterpretation. More advanced adaptations or interpretations will be looked at in another article.
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The reinterpretation: cover in the narrower sense
If a work is merely replayed, performed, re-instrumented or recorded, this is usually referred to in common parlance as a cover version. This is a simple reinterpretation of a previously published work by another artist or author. In this case, the basic features of the work are not, or only slightly, changed. Melody and lyrics stay mostly unchanged and only small changes in arrangement, harmony and rhythm (i.e. in the rough sound shape) can be made. In this sort of a simple interpretation the peculiarities and essential features of the original are therefore largely retained. It is also clearly recognisable which work the new version is based on.
Are the new performers entitled to rights?
Non-existent or insignificant changes to the work do not give rise to any personal intellectual creation on the part of the cover performer and they can therefore claim no copyrights or a share in the royalties. Nevertheless, the new performer and all contributors are entitled to royalties from the ancillary rights of the cover version. If you want to learn more about ancillary rights, check out this article on music rights and royalties.
Is permission necessary?
In order to publish a this kind of cover version it is, theoretically, sufficient to name the authors of the original version. In this way, they will receive the royalties for the exploitation of their original work.
If the original is registered with a collecting society such as GEMA, the cover artist does not need the permission of the authors. GEMA administers the ‘rights of use’ of the registered artists and is basically obliged to grant these rights to all artists who want to use a copyrighted song (source: Juraforum).
In summary, a cover version can range from a faithful reproduction of the original to one that has slight changes by way of the elements that make up a musical work, such as rhythm, harmony and instrumentation. Accordingly, even in the context of a cover version that does not require the explicit permission of the author, the degree of alteration can vary.One thing is true regardless of the degree of alteration: any changes made to a new interpretation must in no way distort or detract from the original. In the event of distortion, the author may refuse to release and exploit the cover version on the grounds that his or her intellectual and personal interests may be endangered. (Section 14 UrhG "Distortion of the Work")
What do you have to consider when releasing a cover version digitally?
As with the release of a new song, you need to enter all the metadata correctly. So with a cover version, this also applies to all the authors of the original work and lyrics.
Learn how where to get this data and how to enter it correctly when setting up your track in MusicHub by taking a look at this article in our Help Centre. If you have entered the data correctly, you will have ensured that the authors will receive the royalties they are entitled to from the streaming income generated by your cover version.
However, downloads are treated differently from streams when it comes to royalty payments. This is especially true in North America where downloads are treated the same way as physical purchases. This means that you have to purchase a licence before the track is sold and it is from this license purchase that the authors receive their royalties from download sales.
How do you buy a download licence?
You can buy a licence for downloads from websites such as EasySong or SongFile. Simply register with one of these sites and buy a licence for the number of downloads you expect to sell. At first, only buy a licence for a smaller number of downloads. You can always purchase more licences if your initial purchase gets used up, but you won't get any money back for unused licenses. Either way, it is your responsibility to always keep an eye on how many times a downloads of your cover version has been purchased and to buy more licences when necessary.
What if you don't want to buy a licence?
If you don't want to spend money on download licences, you have two other options:
- When choosing the platforms to which you distribute your release, you can exclude the services that offer downloads. At the moment, Apple Music and Amazon are the only platforms MusicHub delivers to that offer downloads. By not sending your release to these platforms, you avoid download sales and therefore do not need a licence. Unfortunately, it is not possible to separate Apple's or Amazon's streaming services from their download services. This means you can either have both downloads and streaming, or neither.
- Alternatively, you can choose to exclude North American countries (i.e. the United States and Canada) from the territories that you will distribute your release to. The download licences only apply to purchases in North America so if you exclude this region you don't have to buy a licence. However, this also means that your music will NOT be available on any streaming platform in North America.
Want to know more about music rights and when you are entitled to which royalties? Then read this article, which navigates you through German music law and explains everything important about copyrights and ancillary rights.
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