One of our attorneys, the law-savvy and street-smart Brian August of New York, had some observations about what we're trying to do here on Ourmedia and said we could share them with our members:

For starters, I think you are doing an extremely professional job in
attempting to craft a policy that both minimizes infringement while
trying to be flexible and fair to your members. I think a comprehensive, evolving set of policies will go along way in appeasing a copyright
holder who might at some point be contemplating taking some sort of action either against OurMedia or the poster/member.

On publishing cover songs

There is a tremendous distinction between someone who wants to post a cover song for fun and someone whose aim is to distribute that cover recording for profit. In either case, there is a "compulsory license" which provides for a mechanism for someone to obtain the rights to record and distribute a cover song. The original artist cannot deny you the right to do so; however in return, the cover artist must agree to pay a royalty. The royalty is based on the length of the song and is applied each time a copy of the song is sold. An excellent roadmap as to what must be done to obtain a compulsory license can be found here:

http://www.cdbaby.net/dd?f=8

In this case, however, it appears that the cover artist does not intend to sell the song, but rather just to expose it to the public. Here's where things get a bit murky. Is this guy doing this just for fun? Is he trying to make it professionally? Does he play this song out in bars and get paid to do it? Is he also recording and distributing CD's of the song?

If you or I, purely for fun, were to record ourselves singing Yellow
Submarine at a kid's birthday party and posted that on OurMedia, I think that would be ok. Even though we never obtained the compulsory license, we never sold a copy (nor did we intend to). In that case, it seems like a bit of overkill to obtain a license. As we get closer to the guy who is using OurMedia as a vehicle to gain publicity for himself as a professional or aspiring professional and whose ultimate aim is to SELL this cover for profit, then licensing seems more necessary. Between that, things are gray.

I think you need to explain this distinction to the members and hope that they do the right thing. It's all about getting the right balance between being hyper-technical about the law and allowing creativity to flourish.

Brian August, Esq.
529 West 42nd Street, 7W
New York, NY 10036
917-817-8106