I think the real issue is distributing.  I'm not really sure if posting on Youtube counts as a
"public performance" because no one could watch it, or everyone could watch it.  It's not the
same as broadcasting it on the radio or playing it at a venue to an audience, and one has to pay
for the public perfomance of a song.  For example, Jango pays these fees, so it's ok to upload
a cover tune and have it play to all of their listeners.

If you don't make the cover downloadable, I think you are one step safer as then no one can
accuse you of distributing their song.

Having said that, what keeps me from posting a couple of covers that I have done myself, is
that I read somewhere that you're not allowed to make it available to the "public" at large without
permission.  So I have kept those particular songs off of sites that are accessible to the public at large.

But Mike is correct, the most important issue is if you are making money from the sale of the
song (or any exploitation of it for that matter.)  You have to pay the songwriter(s) and publishers for
that privilege, but it can be very reasonable to obtain a compulsory license through Harry Fox Agency.

I will continue with my plan to do covers of songs and post them because there are several factors in my favor:

1.  I am not making money from the song
2.  I am not distributing the song or video
3.  It is a video that I made of me interpreting someone's song:

It's not as if they are going to suddenly lose revenue or me gain revenue from a free video.
One can argue what "public performance" means in this case;  Is me recording myself singing
a song in my studio or a nearly empty venue and then making it "available" to the world a "public performance?"

I feel that this is why maybe they don't "patrol" cover songs because it's somewhat of a grey area.
But I also know that it is up to the copyright holder and their interested parties to "call it" if they feel it is
infringing on their copyright.  So maybe this is why there's not a hard and fast rule, the rights owners
can look at it as free publicity to keep their song in the public consciousness…

I'm no authority, but I did once check wiki articles on   "Derivative"and  "Mechanical Licenses" material and I think doing a youtube cover song falls within the mechanical license laws, as long as they are not "derivative".  Mechanical Licenses, if I remember correctly, are a right bestowed on people doing covers: ie the "owner" of the song is required by law to provide a mechanical license. Which you can do thru a couple of organizations, like Harry Fox.  

Derivative material does require specific release by the publisher/owner of the copyright. 

Beware: This post should not be informative, rather, an encouragement to sort thru some wiki articles on copyright law and examine the diff between mechanical licenses and derivative material.  I'm not sure the owner of the song has a right to withold a mechanical license for youtube presentations. These licenses are cheap and ez to get online. see harryfox.com, for example.  I think CD Baby has another org listed on their site. 

I think it has to do with the fact that a mechanical license is the right to reproduce
a song on a "phonorecord," (this license was started by player pianos no less)
so it doesn't apply to Youtube, which is performing the song and putting it where
anyone could listen to it.

I don't understand it either.  Once the copyright holder has exercised their right
to publish the song first, then other artists can cover it.  I think it must get down
to a performance royalty issue.  If you play a cover in a bar, the establishment
is supposed to have paid their ASCAP or BMI fees in order for that to be legal and
possible.  I think that there is no such provision for YouTube, and that must be
the problem anyone has with it.

It doesn't make sense to me either because no money is being lost or made and
it isn't really a "public performance."  It seems to constitute "fair use." It also increases
awareness of the song.  I looked up a few things on line to see if I could find an
answer, but didn't find anything definitive.

This is just my educated guess. 

Some traditional Christmas music may be so old that it is considered "public domain,"
in which case, you have nothing to worry about.  I don't recall if there is any
sort of notification process for works in the public domain.

You'd probably have a problem if you covered something modern like "Jingle Bell Rock."

I agree John - I guess the luddites are alive and well in 2011!

John Oszajca said:

Mike Ippersiel said:

I recently got an email from a very concerned subscriber who applied for a mechanical license to do her version of a cover, but when she asked about doing a video on Youtube was flatly refused the option to do it.

That's a trip. It always surprises me that there are people out there that miss the boat so badly. A cover song is just advertising for the artist. Even if it's bad. I have people who have taken my actual sound recordings and thrown them up on youtube with pretty terrible visuals behind them. One of them has over 150,000 views. While I can imagine a few arguments against it, I think the positives FAR out way the negatives.

I'm especially shocked given that she applied for a license. Very odd to me.

I really am not clear on all the legalities, but one only needs to look at the hundreds of thousands (perhaps millions) of cover songs on youtube to realize that there is an angle there.

Looks like I really opened a can of worms with this topic

I know that at least several of the songs on my Christmas CD are not "public domain", so I should get permission for them. But seeing as how it is now January 2nd, I think I will put this on the back burner for a while!