Proxy music: why the cover version's days could be numbered

http://www.theguardian.com/music/2015/feb/06/cover-versions-itunes-us-copyright-office

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The age of the crummy cash-in cover version may be coming to an end due to a pincer movement by both iTunes and the US government that could push opportunistic artists off music-download and streaming services entirely.

Digital Music News (DMN) has reported that iTunes has changed its terms and conditions with regards to how songs are listed on the store. While Apple and all three major labels declined to comment on this subject, DMN’s report claims that the new conditions will not block cover versions outright, but will look to remove acts hoping for a trompe-l’œil effect. This means that when uploading a cover of a current hit song, an artist will need to name their interpretation something along the lines of “[Name of Song] in the style of [Famous Artist Name]”, hoping that fans of said famous artist either download it out of curiosity or by mistake.

This has been a burning issue for labels and artists for a number of years, when soundalike acts are increasingly sailing close to what in legal terms is classed as “passing off”. They were, however, the co-architects of this situation. Often pushing tracks to radio several weeks ahead of release to build up consumer demand, labels inadvertently opened the back door for those performers who are fleet of foot to quickly bash out a version, get it on download and streaming services and make hay while the sun shines in the retail no man’s land between first radio plays and actual commercial release.

The record industry in the UK moved to close this loophole with what it termed on air/on sale – namely that songs were available to buy as soon as radio stations playlisted them. Some radio stations hated this policy, and there was plenty of talk about tracks being blacklisted if they did not give radio a long lead window, sometimes up to six weeks, as the only place to hear a song.

This all culminated to the ridiculous situation at the end of last year where Mark Ronson’s Uptown Funk was heavily playlisted but not yet on sale. A cover version by X Factor contestant Fleur East was released and went to No 1 before the original version was even available to buy. Sony Music had to bring the release of the single forward by several weeks to meet demand. This was the same Sony Music that dropped its blanket on air/on sale policy in the UK back in 2011.

Going back to the iTunes changes, in addition to piggybacking on the artist name or brand, DMN says that “the cover song cannot sound too similar to the original recording or it will be blocked”. That is going to be something that is much harder to police than just sweeping the song title and could lead to some fascinating test cases if or when this results in court cases over just who can and cannot cover a hit song.

That is the action, arguably taken due to mounting pressure from irate record companies and megastar acts, by one download retailer; but a bigger issue is happening at a legislative level in the US in a mammoth review of music licensing by the US Copyright Office.

According to the Hollywood Reporter, artists would be able to block cover versions of their hits being made commercially available by other performers due to particular provisions for online exploitation. If an act wants to do a cover, they can request a licence from the publisher to do so, but for “interactive new media uses” (they mean on sites like iTunes, Spotify and YouTube) the publisher can “opt out of the compulsory regime”.

The Copyright Office clarifies this further. “[P]ut another way, where the publisher had opted out, someone who produced a cover recording would need to obtain a voluntary licence to post the song on an interactive streaming or download service (just as would someone who wished to offer streams or downloads of the original recording of that work).”

Where this could really impact is for those artists who have chosen not to license their music on certain digital platforms. So this could give Garth Brooks, because he only makes his music available digitally on his own GhostTunes service, new powers to zap covers from iTunes as well as give Taylor Swift, the Beatles and AC/DC the means to take cover versions of their songs off Spotify (as none of them have yet granted it the streaming rights to their catalogues).

The unscrupulous cover version has a long and ignoble history. In the days of music hall, as detailed in Simon Napier-Bell’s recent Ta-ra-ra-boom-de-ay book, stage stars would race each other to claim the sheet music hits of the day and perform the ‘definitive’ version as this worked as a loose form of ownership through association. With the rise of recorded music in the 1950s and 1960s, UK labels would duke it out with each other to get in first and release a cover of a big US hit before the American performer even had a chance to release it internationally. This meant several versions of the same song could be battling it out in the same weekly chart.

The commercial high-water mark (but low-water mark artistically) for cover versions came in the late 1960s and 1970s with Top of the Pops’ series of albums. Due to tardiness within the BBC over trademarking the name of its flagship pop-music show, the opportunistic Hallmark Records/Pickwick label was able to regularly flood the market with re-recordings – some sterling, but most laughable –of the hits of the day. These albums proudly boasted of not featuring the original artists, but arguably attempted to deflect buyers’ attention with free posters and a sleeve image of, to use the crude vernacular of the time, a “dolly bird” in a state of undress.

None of these legal moves are going to kill off the cover version, which has long been the launchpad for what we now see as our greatest songwriters – early albums by the Beatles, the Rolling Stones and Bob Dylan all groaned under the weight of covers. Hopefully, what it will do is ensure that the shonkiest of covers are quarantined in karaoke booths and the backrooms of pubs as the bar staff shout for last orders.