[PoorGlory]

Originally Posted by Resonant Alien

I believe that is incorrect.
§ 106. Exclusive rights in copyrighted works<SUP>36</SUP>

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.


Based on the above, a cover is a violation, as the author has exclusive rights.


"Fair Use" is the only exception, and is defined as:

§ 107. Limitations on exclusive rights: Fair use<SUP>38</SUP>

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


Recording a cover does not constitute fair use unless the reason for recording the cover falls under one of the above conditions.

I will quote some of what was just written regarding compulsory licenses:

Does the Intended User Have to Use a Compulsory License?
No. The person wishing to make and distribute phonorecords of a nondramatic musical work may negotiate directly with the copyright owner or his or her agent. But, if the copyright owner is unwilling to negotiate or if the copyright owner cannot be contacted, the person intending to record the work may use the compulsory licensing provisions of the copyright law.


May a New Arrangement of the Copyrighted Musical Work Be Made for the Recording?
Yes. The compulsory license includes the privilege of making a musical arrangement of the work “to the extent necessary to conform it to the style or manner of interpretation of the performance involved.” However, section 115 also provides that the arrangement “shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work . . . except with the express consent of the copyright owner.”

To put it simply, a recording a cover doesn't violate anything. It doesn't violate your original sound recording copyright because it's a completely different sound recording, and it doesn't violate the performing arts copyright because you are seeing royalties from the distribution of that material.

It has nothing to do with fair use. Once your song has been published and out there for people to consume, it's subject to compulsory licenses.