Copyright strikes on YouTube

Factual Questions
1

I think this belongs in FQ; it pertains law, albeit about music, but is not about arts and entertainment per se.

I’ll start with saying that I’m fully aware that the rules and TOS of YouTube does not equal copyright law. YT might be using © as a fig leaf to protect themselves from litigious actors.

If you post a video that contain copyrighted music and YT finds out, you’ll basically face one of three things: Revenue sharing, De-Monetization or a Copyright Strike [YT terminology], which takes down the video. There are huge grey areas where the murky “educational” or “parody” or “fair use” are invoked by uploaders. Some may have merit, others not.

There are some copyright holders that are infamous in the YT creator circles: estate of Jimi Hendrix, AC/DC and most notorious seems to be Don Henley regarding Eagles material. Now I’m not interested in the legality of using the actual recording of Life in the Fast Lane1 but rather what gives about mechanical licensing.

As I understand it, a copyright holder cannot stop anyone from making a cover version, beyond the very first, famously Mr. Tambourine Man2. So if someone does a cover of Life in the Fast Lane, what means does Henley have to stop that? If a musician records it, uploads it to Spotify, publishes their version in other ways, aren’t they untouchable?
Again, YT can set their own rules.

1 Letterman was the best:

2 Must you get permission to record someone else’s song? - The Straight Dope

2

Indeed.
DH struck Charles Bertould after he recently released a beautiful version of Hotel California (Instrumental, fretless bass no less).
Seems totally counter productive.

Charles explains here…

I think that 's the answer.

3

I’m not a super expert in this but this is my understanding based on looking into making covers for my own music career. In short anybody can make a cover of a song and release it as audio (this is important), and they’re in the clear so long as they pay the appropriate royalties. In the making of a cover, you may not use any of the audio from any performance (original or another cover). Basically, making a cover is taking the sheet music and doing your own performance, while using someone’s performance is sampling and that’s a grey area when used in small chunks and modified (see Hip-Hop) but definitely a no-no for a large portion, say using the music as a backing track.

So why is YouTube different? Recall above I said “release it as audio”. The moment you tie your audio to video, your enter a whole new realm of rights called “synchronization rights”. Unlike covers, nobody has implicit synchronization rights. Hence releasing a cover on YouTube violates the owners synchronization rights. Synchronization rights are normally very expensive, so what YouTube has gone and down is make a blanket agreement with the largest rights holders to get them paid, and so people can put up videos with copyrighted music.