Fair Use in Guitar covers - YouTube

I have a channel where I have posted guitar covers of numerous songs. I am playing the songs out, and I get lots of comments on my videos saying things like "Thanks for your video, it helped me learn how to play this song by watching you." I am not generating revenue from my videos or anything, and I am using them so I play the song along with the original track and people criticize how I am playing. I have posted guitar tabs with one of my songs, for the purposes of "teaching" people to play the song if they want to learn it.

"Copyright Disclaimer Under Section 107

of the Copyright Act 1976, allowance is made

for "fair use" for purposes such as criticism,

comment, news reporting, teaching, scholarship,

and research. Fair use is a use permitted by

copyright statute that might otherwise be infringing.

Non-profit, educational or personal use tips the

balance in favor of fair use."

If I recreate a song in full and use no published backing track, am I under fair use?

Also, at my school's talent show, my band and I played a cover of a song, yet the school was making money off of the show. Fair use since we were using it for criticism in the contest?

Update:

I have had 2 of my covers taken down by Warner Media Group, (one was taken down today before it even went live). Should I go through with a copyright dispute form? What reasoning would I use?

6/21/09
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youtube really dont support Fair use at all. you can get the owner ok or dont use it at all.
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Posting cover songs is a violation of copyright because it is considered a "public performance" under the copyright law. Here's how it is defined in the law:

"To perform or display a work “publicly” means —

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."

That applies to "transmitting" your performance through YouTube. Copyright holders have the right to restrict public performances of their songs under section 106 (4) of the US copyright law:


"§ 106. Exclusive rights in copyrighted works

...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."


So, no, posting cover songs on YouTube is not "fair use" and a defense on that basis would fail in court.
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IFoughTheLaw369 wrote:
"Also, at my school's talent show, my band and I played a cover of a song, yet the school was making money off of the show. Fair use since we were using it for criticism in the contest?"

No, that would not be fair use either. Your school probably pays fees to licensing agencies (ASCAP and BMI in the US) that represent the song publishers in order to be able to present shows like that without violating copyrights. If they don't, they are violating copyrights and getting away with it, which happens a lot at very small venues or non-commercial performances, like at schools or churches. The ASCAP agents just can't be everywhere so they concentrate their enforcement efforts where they can make more money, like unlicensed bars and night clubs. But your band would not be in any trouble for that; it is the responsibility of the venue owner to get the licenses, not the performers.
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Our school kind of threw together the talent show last minute and didn't even know what songs groups were performing until the dress rehearsal the night before, so I doubt that they had licensing fees. Thanks for the info though, I think I'll stick to songs owned by Universal now because they let you keep your videos once they discover them. WMG is risky business.
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Yes, WMG are troglodytes. I would eliminate all their songs from my live performances as well as my YouTube channel, but they own so many of the classic songs I play that would destroy my act. I'm stuck with them.