Canada: Are Cover Bands Copyright Pirates?

Last Updated: March 27 2018
Article by Marc J. Belliveau

When your favourite local cover band performs an exact rendition of Brown-Eyed Girl, Sweet Home Alabama or Wagon Wheel, are they infringing the copyright of the song's owner? Can cover bands and tribute bands be accused of "piracy" like the online file sharing community? Unfortunately, the current answer in copyright law is "yes" to both questions.

Copyright Act

As a starting point, under the Copyright Act, a reproduction of any work, such as performing a well-known song in a nightclub, without the permission of the owner, is infringing the exclusive rights of that owner. Just like photocopying an entire book, photographing a painting, or recording a television program is copyright infringement, so too is playing another person's original song in its entirety without consent.

Copyright protects original works of authorship which are fixed in a tangible medium of expression, including literary works, musical works, dramatic works, choreographic works, artistic works, software, audiovisual works, sound recordings, architectural works and so on. It excludes ideas, procedures, processes, systems, methods, principles and facts. Once the government-granted copyright monopoly expires (remaining life of the author plus 50 calendar years), the work enters the public domain and the owner's exclusive rights cease to exist.

Copyright Collectives

How do the cover bands get away with copyright infringement?

The answer lies partly with copyright collective societies, who obtain exclusive rights from owners who join their society and enforce them under the Copyright Act. These rights-holder organizations "tax" music venues under a licensing tariff system approved by the Copyright Board. SOCAN (Society of Composers, Authors and Music Publishers of Canada) has more than 25 licensing tariffs to collect money from restaurants, nightclubs, banquet halls, karaoke bars, exhibitions, circuses, fitness classes and many more. It claims to represent the entire world's musical repertoire, but that is hardly possible. The other music collective, Re:Sound has fewer tariffs than SOCAN but collects its licensing fees on behalf of recording artists and record companies. A venue often has to pay both SOCAN and Re:Sound for the permission to play the same recorded and live music. In the US, the corresponding performance rights collectives are ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music, Inc.).

So, when you hear a band play a cover song in a bar which pays its SOCAN and Re:Sound tariffs, the rights to play live and recorded music, as obtained by the venue under the license, effectively permits the bands to play the material in the repertoire covered by that license. It doesn't matter whether the cover band is getting paid by the venue; the live reproduction of the song is covered by the scope of the license from the collectives. Presumably, the collectives are content to get paid by the venue and mercifully do not go after the cover bands for payment as well. In turn, the collectives distribute the royalties that they have collected from venues, to the songwriters and publishers (SOCAN) and to the recording artists and their record labels (Re:Sound).

If the venue is not licensed by a collective society or, assuming it is licensed but the cover song is not part of the collective society's song repertoire then both the venue and the performer are technically jointly liable for copyright infringement, subject to any available defences they may have under applicable law. The reality, of course, is that the actual copyright owner of the song is unlikely to find out about the infringing activities.

Everyone loves Covers

Musical artists who cover popular songs rarely consider their performance as infringing, even though they are profiting from the unlicensed use of the original artists' creative skills and meticulous studio work. Many performers see the cover song vehicle as merely paying tribute or homage to the musical work in question, particularly when the performance is without compensation (such as open mics, battle of the bands, etc.). The audience enjoys hearing what they know from mainstream pop media sources and, to some extent, the cover band is promoting the song on behalf of its copyright owner. The live cover version is no substitute for the original and will not negatively affect sales of the original. In sum, covering songs is socially acceptable and should not have to carry the stigma of being unlawful.

Thus, the better societal question might well be: since everyone does it and everyone likes it, should covering songs in a live setting be a lawful activity under copyright law?

Fair Dealing

Copyright is concerned about finding and maintaining a balance between the copyright owner's right to control the use of protected works and the public's right to make certain uses of those works without the owner's permission.

Therefore, when a copyright owner sues an infringer, the infringer has various defences available. Those defences are called "user rights" in Canada, namely the rights of persons to use a protected work in a fair manner.

In the US, the copyright "user rights" concept is called "fair use" and is grounded in that nation's constitutional principles of free speech. Our Canadian copyright law calls it "fair dealing," and in contrast to the US, limits its applicability to specific enumerated allowable purposes. Our courts have yet to infuse our doctrine of fair dealing with fundamental Charter principles of free expression, however, that day will surely come.

Parody and Satire

When the Copyright Act was amended in 2012, two new categories of fair dealing copyright user rights became fully enshrined into Canadian law: Parody and Satire. It wasn't always the case. While parodies and satires have been historically used in great Canadian comedy programs like Wayne & Shuster, SCTV, Kids in the Hall, Codco and This Hour Has 22 Minutes, a 1996 Federal Court judgement effectively held that a parody was not a valid defence to copyright infringement. The 2012 copyright amendments, by adding a specific reference to parody, corrected that "bad" decision and modernized the law to be what it should be.

Parody as a Tribute

One need only recall the humorous musical parodies created by "Weird Al" Yankovic. His cover versions of major hit songs were both parody and satire. Under US law and its fair use doctrine, he did not have to seek permission for his parodies and was never sued for any of them. He did, however, seek permission from artists, to maintain good relations, and most of them agreed to let him proceed. Under Canadian copyright law, however, his parody defence would not have been available if he had been sued for infringement because, until 2012, parody was not an allowable purpose in Canada.

Freedom of Expression

Let's revisit the most famous US case that considers parody as a defence to copyright infringement. In Campbell v. Acuff-Rose Music, Inc., a rap group covered Roy Orbison's Oh, Pretty Woman as a parody without obtaining permission. The court found that the cover version was not infringement even though it had sold over 250,000 copies. The profit motive of the rap group and the commercial nature of the cover were not an automatic disqualifier. The cover was held to be a parody and therefore not infringing the original. Although every case must be considered on its own circumstances, the US doctrine of fair use conforms with fundamental rights of free speech and society's interest in individuals having access to knowledge and creative works.

In a recent Canadian case (United Airlines, Inc. v. Cooperstock), involving a gripe website, the Federal Court considered the meaning and scope of the parody purpose under fair dealing, quoting at length from Campbell v. Acuff-Rose Music, and ruled that parody "should be understood as having two basic elements: the evocation of an existing work while exhibiting noticeable differences and the expression of mockery or humour." As such, the court was effectively limiting the meaning of the word "parody" to a critical "mocking" purpose. Does a parody necessarily have to criticize the original? Is there room within the scope of guaranteed freedom of expression for "non-critical" parody, such as paying tribute or homage to the original work?

Review of the Copyright Act

One of the other amendments made to the Copyright Act in 2012 was the inclusion of a five-year review process. That review process is now due, although the government has not yet indicated when it will begin or how it will unfold. One obvious amendment would be to add "tribute" (or "homage") as another allowable purpose for fair dealing defences. It would permit non-critical reproductions to be made if they are made fairly. The fair dealing analysis would still be applicable, as to whether the tribute was indeed fair, however, courts would not have to stumble on the initial threshold question of whether a parody must inherently be a critical one, mocking the original, in order to assess its contextual fairness. Until then, Canadian cover bands will continue to be viewed as pirates under our copyright law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions