The musical work is a work of art composed of sounds and rhythms in which one can also find lyrics. It is a creation protected by the Intellectual Property Code as a work of the mind as long as it is shaped and original. The author of a work creates. It has heritage rights but also moral rights over its creation, including the right to respect for it.
The interpretation of a musical work is protected by neighbouring rights as stipulated in Article L.212-1 of the Intellectual Property Code: “To the exclusion of the complementary artist, considered as such by professional usages, the performer is the person who represents, sings, recites, declaims, plays or otherwise performs a literary or artistic work, a number of varieties circus or puppets. ». Unlike the author of the work that created it, the performer puts his personality at the service of it. Article L.212-2 of the ICC lists the rights against the performer, including the right to respect for his name, quality and interpretation. These are inalienable, imprescriptible and personal rights.
It is possible to give a song a “second life” thanks to the increasingly frequent covers. The cover can be simple, i.e. it corresponds to an interpretation by another artist that the original artist remains in keeping with the original. This means that there is no modification of the text or melody, partly to the adaptation, which is a new interpretation of the song. The adaptation takes place, most of the time, when a song is translated into other languages. The best known example is Claude Francois’s song “As usual” which became “My way” in English.
Don’t song covers infringe the copyright of the original creators?
To answer this question, we must distinguish several cases of figures. Indeed, the scheme differs depending on the exploitation that is made of the takeover: it can simply be posted on a hosting site like Youtube or Dailymotion; social networks such as Instagram, Twitter or Facebook, or be marketed. In addition, there are different forms of covers: you can repeat a song identically, just as you can change the rhythm of the music or adjust certain lyrics, especially for a parodic purpose.
The Commercialization Of Music Covers
Many artists have taken up pre-existing songs that are identical, more or less successfully. But how do you market a music cover?
A performer who wishes to make a cover of songs and market them through physical support must pay a fee to the SDRM (society for the administration of the right of mechanical reproduction) when pressing the music. For a digital operation, this payment does not have to be made: the streaming platforms (Spotify, Apple Music, Deezer …) will directly pay the mechanical reproduction rights to SACEM. On the other hand, if the takeover is distributed in streaming outside Europe, saCEM will have to pay these mechanical reproduction rights.
In any case, the performer does not have to be asked by the cover artist since he holds neighbouring rights: he did not create the song but only performed it for the first time. The original performer has only rights to the recording of the original piece but not to the cover. Nor will he be paid if the song is repeated. Only the songwriter will have rights to the cover if the work has not fallen into the public domain of course.
For example, in 2013, singers France Gall and Jenifer engaged in a real media battle. Jenifer had released an album entitled “My Statement”, composed entirely of covers of the greatest tracks of France Gall. However, France Gall claimed that she had not given her permission to the project. Universal, producer of the cover album, defended itself by saying: “We didn’t legally need the approval of France Gall because we respected the original works.” France Gall is not the author of the songs, she is only the performer of these songs, often written by Michel Berger or Serge Gainsbourg. Could as a performer object to this cover album? Jenifer had no legal obligation to ask France Gall to do a cover of the songs she had performed, on the other hand, the practice in the music industry is that the performer could be made aware of the cover. France Gall, as a performer, could not stand in the way of Jenifer’s covers. It should be noted that France Gall received no cents from Jenifer’s album “My Statement” since only the composers of the original songs – or their rightful owners – were able to receive a salary.
Covers Of Music On The Internet
In recent years, the development of hosting platforms and social networks has led to the proliferation of song covers. Justin Bieber, Kendji Girac, Angèle and so many others have made themselves known by posting covers of songs on Youtube or Instagram.
But what are the rules to respect in order not to infringe the copyright of the creator of the original work?
To publish a cover on the Internet, it is necessary to obtain the approval of the songwriter and publishers of phonograms at the risk of being accused of counterfeiting. To do this, it is enough to ask saCEM for permission: when a song is part of the repertoire of the collective management society, it can be interpreted freely by an artist, in return, a remuneration must be paid to it.
To make a cover in accordance with the original and publish it on Youtube, there is no authorization to ask the original creator simply because the famous platform has made an agreement with SACEM: Youtube will pay directly to saCEM the remuneration due to it. However, this agreement does not apply if the performer publishes his cover on another hosting platform, Dailymotion for example. Nevertheless, the agreement of the songwriter of the original song will be obligatory, even on Youtube, when the video published is an adaptation of the original that is to say that there is a modification of the lyrics or melody.
Despite this agreement, replays posted on Youtube remain subject to an algorithm called “Content ID” that automatically triggers when a published video “includes copyrighted content”. The video may be blocked or demonetized if a person (often copyrighted companies) claims a forgery.
To avoid copyright infringement, the best thing to do is to look at the “Create” and then “Music Rules” tab on Youtube, which lists most songs with how they can be used and in which country. For example, Dr. Dre’s song “The Next Episode” cannot appear in a video or be replayed or its video deleted. By contrast, George Michael’s song “Careless Whisper” can be covered all over the world. It is the rights holders who set these rules.
On social media, nothing seems to stand in the way of posting covers without the consent of the original authors. However, for some, Article 13 of the European Copyright Directive would lead to the disappearance of this practice. On September 4, 2018, a user tried to post a cover of Bach on Facebook at the piano. Facebook, through an algorithm, had not authorized the release of this video, which would be contrary to the copyright of Jean-Sebastien Bach, who died 268 years ago.
For opponents of Article 13 of the European Directive, the problem is that the systematization of this filtering algorithm will prevent the dissemination of certain works, including covers of music, sometimes falling into the public domain. Despite some errors that may arise through bond filtering, Article 13 remains a real boon for artists who will finally be paid their fair value on the Internet.
The Question Of Adapting A Song For A Parodic Purpose
The parody exception is found in Article L.122-5 of the Intellectual Property Code: “When the work has been disclosed, the author cannot prohibit: (…) (4) Parody, pastiche and caricature, given the laws of the genre.” The parody must still respect certain rules: there must be no risk of confusion with the parody work and the parody must be intended to make people laugh. All works can be parodied whether it is comics, paintings, books or music.
In the case of music, we are no longer talking about a cover but adaptation because there is a change, most of the time, of the lyrics. In a judgment dated January 9, 1970, the Paris High Court admitted that in musical matters, parody exists only if the author wanted to obtain a cartoonish effect, foreign to the original work, without the risk of confusion. If the parody song respects these rules, the author of the parody will not have to ask the author of the original work for approval thanks to this exception, whereas it is necessarily requested when adapting a music, without a parodic purpose.
The character of this exception can be disputed: it was created for the purpose of freedom, but parody can sometimes infringe the rights of the authors of the parody work in a considerable way. Notably because the right of paternity does not have to be mentioned; just as the parody work can undermine the integrity of the parody work. There must be a proper balance between the freedom of the adapter and the respect of the author of the original work.
For example, Dieudonné had adapted the song “Shoahnanas” to music by Annie Cordy. The Court of Justice of the European Union did not recognize the parodic nature of this adaptation because of the words “clearly anti-Semitic and deniers who are exclusive to any humorous intention”, the Court also wished to recall “the importance of the principle of non-discrimination on the basis of race, colour and ethnic origin”. The Paris High Court on 15 June 2017 also admitted that there was a crime of public insult against a group of people in relation to their religious affiliation, so the exception of parody could not be allowed because of the lack of humorous purpose. Beyond the discriminatory nature of the parodic song, this adaptation really undermines the original work, Annie Cordy’s song. Would she have agreed, if her consent had been obligatory, that one of her songs be adapted with an anti-Semitic character?
In other cases, the judges have admitted parody despite some controversies, such as when the Court of Cassation on 12 January 1988 recognized the parody exception to Thierry Leluron for adapting Charles Trenet’s song “Douce France”, which became “Sweet Tres”. Some authors had criticized this position as a mockery of Charles Trenet’s homosexuality in Thierry Leluron’s adaptation.
All these possible situations create many uncertainties about the rights and obligations conferred on the artist of recovery.