Fair Use Makes Fair Play For Cover Bands?
“Ten bands. Ten secret tribute sets. One awesome weekend.”
This is how Michael Tomko describes his annual concert series, An Under Cover Weekend (AUCW), on its website. He considers it an “opportunity to have diverse collection St. Louis’ best bands under the one roof for one amazing concert.” Over two nights, five bands perform an entire set as a different artist, like Union Tree Review as Marvin Gaye.
But this presents an interesting legal quandary: are the bands liable under U.S. Copyright Law? Tomko is pretty sure they are covered; “The venues pay license fees on a yearly basis. There is ASCAP, BMI, and SESAC, and they hit up the venues for the fees based on radio play and set lists from the top 100 tours. So in terms of the rights to cover a song, 99% of that is covered by those groups.”That is music to any cover band’s ears. But Tomko runs into other problems in promoting the show. “We can’t use video to promote the show,” Tomko says. “It’s really nebulous. At what point are the performances parodies? What is covered by fair use?”
In this case, not much. According to U.S. Copyright Law Section 107, a copyrighted work may be fairly reproduced for “criticism, comment, news reporting, teaching, scholarship, and research.” Section 107 also outlines four criteria when considering if a use is “fair” or foul:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
In this case, the venue does charge an admission for the weekend, and the performances resemble very closely the original studio recordings. Licensing and fair use do not take trademark issues into account either. While this tends to mostly affect tribute groups, an artist’s commercial name and trademarked logo is protected and use without permission could result in legal action. Not every cover band is as lucky as Australian Pink Floyd to have the original artist invite you to perform at his 50th birthday.
Fortunately for AUCW, the “theft” here is entirely friendly and the show’s purpose is strictly fun. Besides, according to Tomko, they may be too far off the radar to really worry. It’s only for one night.