In a previous VTuber IP 101: Protecting Avatars, Content, and Branding blog post, we explored the most common intellectual property issues that VTubers should be aware of including intellectual property rights in VTuber Avatars, DMCA Takedowns, trademarks for VTuber names and brands, and intellectual property provisions and models in agreements with VTuber agencies.

However, one topic that we didn’t touch on is music. While many VTubers either just chat with their audiences or livestream themselves playing video games, many VTubers are also singers and musicians. VTuber culture grew out of and continues to be heavily influenced and intertwined with Japanese internet and idol culture. With this, comes utattemita – a genre and culture based on utaite which are amateur singers who primarily post cover songs online. However, navigating complex music rights and knowing what licenses a VTuber needs for cover songs can be hard.

So in this blog post, we’ll break down the relevant rights, license and pitfalls that a VTuber needs to know about when it comes to performing and posting their cover songs.

The Different Types of Music Licenses

There are three main types of rights that a cover artist should be aware of: Mechanical Rights, Public Performance Rights, and Synchronization Rights. Though as we’ll cover below, the one that VTuber cover artists should be most aware of are Synchronization Rights.

Mechanical Rights: Mechanical Rights are the rights needed to record a song that someone else wrote and to distribute that recording in an audio-only format. The easy thing about Mechanical Rights is that the United States government, in 17 U.S. Code § 115, has granted everyone the right to obtain a license to create a cover song so long as they pay mechanical royalties. This is made easier by the fact that platforms are now the ones responsible for obtaining licenses. So if a cover artist releases a cover song on Spotify, it is Spotify’s responsibility to obtain the license to the Mechanical Rights and pay the relevant mechanical royalties. However, cover artists are responsible for Mechanical licenses and royalties if they distribute the cover songs outside of the platforms, such as direct CD sales to consumers.

Performance Rights: Performance Rights are rights required to perform a song that someone else wrote in public. While there are no statutory rights to performance, most platforms and live venues have agreements with entities called performance rights organizations (“PROs”). Similar to Mechanical Rights, platforms and venues will obtain the necessary performance rights and pay the necessary royalties for artists to perform cover songs through agreements with the PROs. However, because there is no statutory right to performance rights like there are with mechanical rights, this is not a fool proof method. Many songs, particularly more obscure or niche songs, are not managed by PROs. While platforms such as YouTube will have agreements with PROs and similar organizations in other countries, local venues may not have the same extensive contracts. Given that many VTuber cover songs are of Japanese songs, VTubers performing cover songs in the United States should double check that the venues have the necessary rights.

Synchronization Rights: Synchronization Rights are required to record a song that someone else wrote and also distribute it in a video format. The video does not have to be the original artist’s video. Any combination of the song and video requires the cover artist to acquire synchronization rights. This includes a cover artist’s music video, videos of still images with the song, videos of a VTuber’s avatar performing the song, or even recordings of concerts and live performances of the song. For instance, YouTube has some agreements to obtain synchronization rights. While this might allow cover artists to upload videos of their cover songs, this also gives owners of the song rights the ability to claim those videos and receive all revenue from those videos. This leaves cover artists vulnerable to either earning no revenue from those videos or having those videos taken down. Because of the importance of utaite culture in J-pop, Vocaloid, and VTuber music, many music producers explicitly allow cover songs. However, it is still important to double check before making a cover song video. If there is no explicit permission, then a cover artist should consider obtaining permission or a license from the publisher of the original song.

What Vtubers Need To Look Out For

VTubers in particular need to be careful about “live” performances of cover songs. Typically, live performances would only require Performance Rights. However, oftentimes, live VTuber concerts feature recorded performances featuring the VTuber avatar performing cover songs, which means that a synchronization license is required. Given that synchronization licenses are much more expensive than performance licenses, VTubers performing at live concerts should either obtain permission from the original music publisher or forego singing cover songs as part of their set.

Cover songs are an important part of VTuber culture and can be a great way for VTuber musicians to start to build a following for themselves. However, it is important for VTubers to understand the permissions and licenses needed to make cover song videos or performances as failure to acquire the right licenses can result in takedowns, cease and desists, and fines.

For projects involving vtubers, music licensing, digital content or the creator economy, the Odin Law & Media team is available to help clarify legal obligations and support compliant creative work.