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Comment by DominikR | Hacker News Reader

They can cover songs because they reach an agreement with the license holders and Nintendo obviously isn't interested in that kind of business.

I can't blame them, because Mario is one the main drivers for sales of Nintedo consoles in the last decades.

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Not entirely,for music in the US there is compulsory licensing in the law. The orignal copyright owner does not need to agree as long as the covering musician complies with the terms of the compulsory license laws.

http://en.wikipedia.org/wiki/Compulsory_license

Original copyright holder doesn't have to agree for you to make a cover. It's a common courtesy though, but not legal requirement.

A related story I found interesting at the time about Weird Al vs Lady Gaga: http://www.techdirt.com/articles/20110421/10431413988/weird-...

That story also shows what you can and cannot do without copyright holder's permission. If you don't have a permission, you cannot profit from your cover. If you have a permission, you have to pay royalties for your cover to the original author if you're exploiting your cover commercially.

> That story also shows what you can and cannot do without copyright holder's permission. If you don't have a permission, you cannot profit from your cover. If you have a permission, you have to pay royalties for your cover to the original author if you're exploiting your cover commercially.

Weird Al does song parodies, not covers. AFAIK the prevailing opinion is that his songs would be legally protected under fair use (whether released commercially or for free) but he typically gets permission from the artists as a courtesy.

You're right. It dawned on me once I have commented. Parodies are in different legal space, so I'm not sure about commercial exploitability of it. See my other comment, based on my experience, how regular covers are treated legally within EU.

Actually untrue in germany at least. There's a compulsory license requirement in the german copyright law. You'll have to pay a share of your earnings for that license, but it can't be denied to you.

True in Germany as well. You're just mixing the two separate issues. We did a documentary a year ago for EU market and we had to commission a cover of a song that would be used as an intro for said documentary. It was explained to me that we don't need a permission to commission (make) a cover, and band that made the cover can perform that in their concerts, but we can't use it for commercial purpose (documentary) without asking for permission from original author since it's essentially the same as with original work. What we had to do, legally (and what we did), was to secure rights to use the original song for our commercial project (author and publisher waived royalties though, but doesn't matter), and then we also, in parallel, commissioned a cover from some band and we secured rights to that cover so we can use it.

In a nutshell, cover is treated (it seems) like a reproduction. For example chopin's music is now royalty free and accessible for any purpose, but you need a reproduction rights from whoever has performed that.

I am sure something is lost here in translation since english is not my first language, but I think you can get a clear idea from it.

The cover certainly can be used for commercial purposes: See the debate around Heino and his Cover-Album of Tote Hosen Songs. In your example the band was allowed to perform it in public (commercial usage here) and they could probably have pressed a recording and sold it. You need a license and need to pay royalties but that license cannot be denied to you (basically registering the cover with the GEMA is sufficient). Note that this applies to strict cover-versions only and only for songs registered with the GEMA - no major edits permitted.

If that still holds true if the cover is used in a documentary is a separate question. Also note that sampling is not covered by that paragraph (see Metall auf Metall).

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