[cc-licenses] Is a cover of a song a derivative work?

Gregory Maxwell gmaxwell at gmail.com
Wed Aug 1 15:55:43 EDT 2007

On 8/1/07, Guy Johnston <guydjohnston at googlemail.com> wrote:
> Hi, if a song (the composition, not a recording) is licensed under a CC licence which prohibits
> derivative works, does anyone know if performing a cover version of it would legally be seen as
> simply a copy of it, and therefore allowed, or as a derivative work and therefore not allowed? I
> think that's quite an ambiguous case, and I'd guess that performing it accurately would be seen as a
> copy, but a recording of that performance would be seen as a derivative work.

This is not ambiguous in the context of the CC licenses.
Review the definitions of "Adaptation" and "Collection" in -ND, for example.

Under ND you are only granted "The above rights include the right to
make such modifications as are technically necessary to exercise the
rights in other media and formats, but otherwise you have no rights to
make Adaptations".

I suppose someone could make a highly styled argument that a midi
transcription of a work was permitted under ND, but a basic cover is
far outside of "modifications as are technically necessary".

It might also be possible that an unusual cover may be permissible as
a parody under "fair use" or might be sufficiently distinct to avoid
encumbrance by the licensing of the CC licensed work, but a typical
cover  is not a parody nor is it sufficiently distinct to avoid the
copyright related limits of the original work.

Many people who choose CC licenses are unaware of the implications of
their choice.

It is often productive to discuss this issue with the author of the
work you are interested in using, as they are often willing to make a
copylefted release or release under alternative terms.  Unfortunately,
the need to have such discussions reintroduces the cost and complexity
that standard licensing is supposed to avoid.

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