Derivative works: What EXACTLY is liability for unsanctioned derivatives

[Joe Mama]

GOAL: Recreate 80s songs with modern production and sounds, but all new lyrics.

ISSUES: Obviously, this has become an incredibly popular strategy over the past few years, but every example I can find is an artist signed to a major label who had permission through their label to do the derivative work. After much wasted time, I have come to the conclusion that it is essentially impossible for an independent artist with no budget to secure any such permission.

ROYALTIES:
I am more than willing to give away ALL the songwriting royalties (including the lyrics even though I am replacing them). I personally find the legal issues ridiculous since I can make a cover with no licensing issues, but when I actually add some creativity to it, I step into a hornet's nest. Regardless, I am willing to give away ALL the songwriting royalties, though I know this won't stop liablity for creating a derivative work.

LIABILITY:
At the moment, I have "nothing to lose". I have a brand new artist name, a brand new LLC, and nothing released. If I go ahead and do this anyway (and list the original music songwriter as the sole songwriter), what EXACTLY is the limit of my liability. For instance, if I do this 10 times, and am sued each and every time, is my liability in each case limited to the money earned from each of those 10 songs independently (plus the legal fees)?

If I do get sued for any particular song, can I simply agree to immediately forfeit any proceeds thereby limiting my liability to money generated from THAT song and avoiding legal fees?

It seems to me that for a brand new artist with no assets, this might still be a viable strategy to get my name out there since it is MUCH easier to build a following for a new artist with covers, and if even a few songs don't get sued, that's a MUCH wider audience than I would have expected for originals in that same timeframe anyway (assuming being sued for one song doesn't dip beyond that song's revenues).

As for other issues, do I understand correctly that all the same sync licensing issues, etc still exist separately, so I have a whole OTHER set of issues for any music videos, etc just like I would with covers?

Are there other isseus I'm overlooking (assuming the usual marketing on tiktok, Instagram, etc)

Can I be sued in any case for MORE than the total income produced by any given song? Are there actual cases of companies suing for much more and artists rolling over simply because they can't afford the legal fees?

[Hugh Robjohns]

Yes you could be sued for more than any income generated by way of punitive penalties.

I suggest you consult with an experienced media copyright lawyer.... or turn your musical efforts towards creative wholly original material.

[Joe Mama]

Yes you could be sued for more than any income generated by way of punitive penalties.

I suggest you consult with an experienced media copyright lawyer.... or turn your musical efforts towards creative wholly original material.

I've had a few consultations over the years with music attorneys. I've gotten very generic (and severely overpriced) advice overall which is something I cannot afford at the moment.

I have spent decades making original music in a never-ending uphill grind. Looking at trying something different for the first time ever.

Are there any specific cases of artists successfully sued for punitive damages (or any other damages beyond the amount recouped from a given song) that I can investigate?

[RichardT]

Joe, this sounds like a course of desperation, and it’s not one I think it’s a good idea to follow.

If you go into this knowing you’re deliberately violating copyright it will only increase the punitive aspect of any sanctions against you.

[Drew Stephenson]

Statutory copyright infringement for a willful infringement can be up to $150k and I don't think just setting yourself up as an LLC would wash with a court.

[Joe Mama]

Joe, this sounds like a course of desperation, and it’s not one I think it’s a good idea to follow.

If you go into this knowing you’re deliberately violating copyright it will only increase the punitive aspect of any sanctions against you.

OK.

And is there an example of that?

I see literally thousands of examples of people doing something along these lines all over Youtube. In fact, I see music business channels suggesting "creative covers" as the best way to gain an audience. It's common practice (though they are more often leaving the lyrics and changing the music). I believe there are now YT channels with millions of views PER SONG who essentially do nothing BUT this, and I've never once seen any of those tracks taken down from Spotify or seen any indication of any issues.

Again, I've spent decades banging my head up against a wall doing nothing BUT originals, so this is a new conversation for me.

Is there any case law that shows punitive damages actually being awarded in a case where the music is a cover, but the lyrics are changed (or the lyrics are a cover, but the music is changed)?

[Joe Mama]

Statutory copyright infringement for a willful infringement can be up to $150k and I don't think just setting yourself up as an LLC would wash with a court.

Good info, thx.

Is that US? Somewhere else?

Are there any cases of such damages actually being awarded in a case where the artist properly registered the song as a cover with their aggregator, but simply changed the lyrics? (or vice versa with cover of lyrics but original music).

[RichardT]

That's in the US for registered works.

A friend of mine was stopped on the highway by the police for speeding. He asked them why they had stopped him when everybody else was speeding as well. They said - it's like fishing, we catch one fish at a time.

[Joe Mama]

That's in the US for registered works.

A friend of mine was stopped on the highway by the police for speeding. He asked them why they had stopped him when everybody else was speeding as well. They said - it's like fishing, we catch one fish at a time.

Or sometimes they don't. I was once pulled over along with 20 other cars. They clocked all 20 from a plane and pulled over every single person on the highway at once.

Still, horror stories are one thing, and practical reality is another (hopefully).

Scary Pockets is a good example. Essentially all they do is derivative works. All covers with completely different music and arrangements (but same lyrics). Hundreds of millions of views on Youtube alone, and all those songs are available on all the paid streaming and purchase sites. AFAIK, they seem to be putting up better numbers than most major label artists with zero BS / fake followers, and it's nearly all derivative covers.

As far as I can tell, if they had simply accepted the common general notion that changing anything means it is a derivative work and therefore illegal, they would not have become one of the biggest successes in the world of independent artists. Have they been sued? Has anyone else? I'm so far not finding evidence of that, yet I see many other artists whose entire careers are similarly based on almost nothing BUT such "derivative" covers.

I so far have not come across evidence of anyone actually being sued for doing a cover but changing the music or lyrics.

Is there such an example?

[zenguitar]

Is there such an example?

This is a question that should be addressed to an experienced legal professional in your jurisdiction. They have easy access to all the relevant case law.

Andy

[Joe Mama]

Is there such an example?

This is a question that should be addressed to an experienced legal professional in your jurisdiction. They have easy access to all the relevant case law.

Andy

That's understood, and if I follow through with this game plan, I will undoubtedly do so at some point before pulling the trigger. In the meantime, I am just trying to crowdsource any such info to help me figure out what paths might or might not be worth spending significant time and resources (like legal fees) to further investigate.

[l-l1tsb0urg]

You're just asking for it. I was involved in a legal battle for exactly what you're trying to do. It cost the defendants big time and I was just a small fry. Don't do it.

[Joe Mama]

You're just asking for it. I was involved in a legal battle for exactly what you're trying to do. It cost the defendants big time and I was just a small fry. Don't do it.

OK. Interesting. That's the first time I've ever heard from anyone with any actual experience seeing this go wrong.

Do you mind sharing a few (anonymous if you wish) details?

For instance, there are bands with hundreds of millions of views who do nothing but posting covers where everything about the music is different... in fact, for many of them, their whole schtick is making it as different as possible.

I've never seen or heard of any of them ever even getting so much as a cease and desist letter. This brings up many questions to try and understand why it went so wrong for your defendants when it is such a common practice.

1) Was there something different about your case vs someone like Scary Pockets?

2) Were they changing the lyrics instead of the music?

3) Were they making changes that the original artists would find particularly objectionable or not want to be associated with? (sexist lyrics, etc)

4) Did they not credit the original artists?

5) Did they obtain a license for the cover?

6) Were they given the opportunity to cease and desist or remit proceeds, but refused to do so prompting further action?

[Drew Stephenson]

For instance, there are bands with hundreds of millions of views who do nothing but posting covers where everything about the music is different... in fact, for many of them, their whole schtick is making it as different as possible.

I think one of the important things to remember here is what's actually covered by copyright. Arrangement, style, genre etc aren't covered. It's the lyrics and melodies that are fundamentally protected and can't be changed without it becoming a derivative work rather than a cover.
It's worth having a read up on the Music Modernisation Act though as a few things have changed around registering works and covers: https://www.copyright.gov/music-modernization/

[RichardT]

For instance, there are bands with hundreds of millions of views who do nothing but posting covers where everything about the music is different... in fact, for many of them, their whole schtick is making it as different as possible.

I think one of the important things to remember here is what's actually covered by copyright. Arrangement, style, genre etc aren't covered. It's the lyrics and melodies that are fundamentally protected and can't be changed without it becoming a derivative work rather than a cover.
It's worth having a read up on the Music Modernisation Act though as a few things have changed around registering works and covers: https://www.copyright.gov/music-modernization/

This is key!

[Joe Mama]

For instance, there are bands with hundreds of millions of views who do nothing but posting covers where everything about the music is different... in fact, for many of them, their whole schtick is making it as different as possible.

I think one of the important things to remember here is what's actually covered by copyright. Arrangement, style, genre etc aren't covered. It's the lyrics and melodies that are fundamentally protected and can't be changed without it becoming a derivative work rather than a cover.
It's worth having a read up on the Music Modernisation Act though as a few things have changed around registering works and covers: https://www.copyright.gov/music-modernization/

This is key!

I've read through those links. Not seeing anything particularly new about the underlying rights, though.

It does concern me that outside of parodies, the vast majority of examples I see are of the lyrics remaining the same, but the music changing (often completely), and not vice-versa.

[Joe Mama]

For instance, there are bands with hundreds of millions of views who do nothing but posting covers where everything about the music is different... in fact, for many of them, their whole schtick is making it as different as possible.

I think one of the important things to remember here is what's actually covered by copyright. Arrangement, style, genre etc aren't covered. It's the lyrics and melodies that are fundamentally protected and can't be changed without it becoming a derivative work rather than a cover.
It's worth having a read up on the Music Modernisation Act though as a few things have changed around registering works and covers: https://www.copyright.gov/music-modernization/

This is key!

I've read through those links. Not seeing anything particularly new about the underlying rights, though.

It does concern me that outside of parodies, the vast majority of examples I see are of the lyrics remaining the same, but the music changing (often completely), and not vice-versa.

Meanwhile, one Billboard hit after another continues to be 80s songs repurposed with new lyrics, though I assume those are licensed through the major labels that put them out.

[RichardT]

I’m not an expert, but that makes sense. The lyrics cannot be changed, but lots of the musical elements can.

[l-l1tsb0urg]

For instance, there are bands with hundreds of millions of views who do nothing but posting covers where everything about the music is different... in fact, for many of them, their whole schtick is making it as different as possible.
I've never seen or heard of any of them ever even getting so much as a cease and desist letter. This brings up many questions to try and understand why it went so wrong for your defendants when it is such a common practice.

Youtube's ContentID and Monitization system has minimized C.D. letters, but it can still happen if the publisher wants to pursue. You mentioned wanting to use new lyrics in addition to musicality. As long as the arrangement is the same, fine. But when you start changing complete lyrics then you're in grey territory. I don't think that constitutes as a cover. If there are bands changing lyrics and arrangements, then they either got permission, haven't gotten caught, the publishers / copyright holders don't care or are happy with the Monetization.

I can't go into much detail to be of any major help, but in my case, they changed the lyrics while still keeping and borrowing elements of the hook / melody. Music / arrangement was changed significantly No, they didn't get permission or license and were given multiple opportunities to cease and desist. They were also selling their version on physical media. No credit given either.

Technology and the internet muddies the waters. My best advice is to book a 30min-1hour consultation with an entertainment attorney. You can find many online who are willing to conduct via Skype or Zoom. Might be the best $100 or so you ever spent.

[MarkOne]

You say there are literally loads of people doing this, (keep the melody and change the lyrics), but I can't bring a single one to mind. (However, that may be a genre thing - I'm almost never dipping into EDM or Hip Hop playlists for instance)

Can you list a few here?

I can think of many many covers where the arrangement is very different, and even the underlying chord structure is re-imagined but the basic melody and lyrics remain the same.

[James Perrett]

GOAL: Recreate 80s songs with modern production and sounds, but all new lyrics.

ISSUES: Obviously, this has become an incredibly popular strategy over the past few years, but every example I can find is an artist signed to a major label who had permission through their label to do the derivative work. After much wasted time, I have come to the conclusion that it is essentially impossible for an independent artist with no budget to secure any such permission.

Maybe you are choosing songs from the wrong artists. The one time I was involved in something like this we contacted the artist (a major 70s psychedelic icon) and he gave the project his blessing. This was an independent project that gained a little radio play from John Peel but nothing big.

[Joe Mama]

You say there are literally loads of people doing this, (keep the melody and change the lyrics), but I can't bring a single one to mind. (However, that may be a genre thing - I'm almost never dipping into EDM or Hip Hop playlists for instance)

Can you list a few here?

It's happening in several popular formats, but pop dance especially. Lots of 80's stuff. One of the dance styles I checked on Beatport (some sort of funky house sub-genre) a while back was nearly 1/3 comprised of 80's ripoffs. Here are a few examples off the top of my head in more popular genres.

BDE by Latto (Genius of Love by Tom Tom Club)
I Was Jack by Jake Owen (Jack and Dianne by John Melenchamp)
Wild Thoughts by DJ Khaled (Maria Maria by Santana)
Used to Know Me by Charli XCX (Show Me Love by Robin S)

I heard a couple new ones just in the past month based on What is Love and Hungry Like the Wolf too, but didn't Shazam them in time.

[Sam Spoons]

"I Was Jack" is clearly derivative, do you have any evidence that the appropriate permissions were not obtained? If not the question is moot.

[James Perrett]

BDE by Latto (Genius of Love by Tom Tom Club)

The WhoSampled website says that there are 177 songs that sample Genius Of Love. Mariah Carey is probably the most well known example back in 1995 but Grand Master Flash was one of the first in 1981.

Whoever owns the rights to that song is certainly used to dealing with artists who want to use it and add their own lyrics.

[Arpangel]

When it comes to sampling, especially early on things weren’t good, a friend had some of his music sampled blatantly by a "famous band" they didn’t even bother to make an effort to contact anyone, it wasn’t until my friends record company got on it things were sorted out.
That’s just bad manners, by those that should know better.