Does Halocene have a case against The Masked Singer Australia?

Question

Halocene is an American Indie rock band. In early 2019 they made a cover song of Billie Eilish's song "Bad Guy". Halocene say that they did this legally by contacting Eilish first and paying any required royalties.

Then, late this year there was a karaoke reality TV show in Australia called The Masked Singer Australia. In it a cover of "Bad Guy" was also done. Halocene claim that this cover was the same in every aspect as Halocene's earlier cover of the song. Their side by side comparison can be found at Halocene Halocene discuss possible legal action to protect [1] their own cover of "Bad Guy" and [2] their guitarist's original music composition, made a long time ago, that he included in the cover.

Whether Halocene "should" take legal action against the media company that made the show The Masked Singer Australia is another question; the costs would be enormous and the legal jurisdiction [US? Australia? Elsewhere?] would be unclear. The question of at law "does Halocene have a civil case for their own work being used without permission?", is more of my question here.

Answer 1

Probably not

Australia, like many countries including the USA, has a statutory based compulsory licencing and royalty collection and distribution organisation, APRA AMCOS that is a member of a worldwide network CISAC.

The producers/broadcaster will have paid APRA AMCOS for the right to use the song and that will filter back to the US organisation with which the rights holder is registered and ultimately to the composer(s).

Unless and until Halocene register with a US royalty collector, they are not entitled to royalties in Australia.

Answer 2

Halocene themselves created the arrangement, to which Masked Singer AU uses chord for chord, note for note. It's along the lines of Queens 'Under Pressure' and Vanilla Ice's 'Ice Ice Baby'. Their work and editing is documented and recorded. Also, as a touring band and due to monetized videos, they do pay contracted royalties for legal distribution rights. They 100% have a case.

Answer 3

Maybe

Cover Licenses

In US law, under 17 USC 115 A person can obtain a "cover license", also known as a "mechanical license", to perform and record a version of a musical work protected by copyright.

This license is compulsory, the copyright owner has no right to refuse. One simply sends a notice to the appropriate collecting society specifying the work to be recorded, the person or entity doing the recording, the release date, and various other details. One also pays the statutory royalty rate, which I believe is currently 9.1 cents per composition of 5 minutes or less (per copy) or 1.75 cents per minute of recording (per copy). This payment entitles one to create an arrangement or "cover version" of the piece, perform that version, record the performance, make and distribute copies of that recording, all lawfully.

There are some limits on this license. It is on;y available if the composition has already been performed and recorded, and the recordings distributed, by permission of the copyright owner. It is only available for retail distribution of the recordings. If the melody or lyrics are changed a different process needs to be followed, where the owner can decline permission.The compulsory license also does not cover a synchronization license, which is what is needed or a music video. This must be negotiated individually. A cover license also does not cover public performances broadcast or in front of an audience. It only covers making recordings.

See "Mechanical Licensing & You: What You Need to Know Before Recording Your School's Performances" for a description of the process

Halocene's Rights

Assuming that Halocene went though this process properly, they have a license to distribute their cover version, and a copyright on their arrangement. Or Halocene might have negotiated a broader license, one permitting public performances or other things, I have no way to know what deal they made.

Masked Singer's Rights

Australia has, I understand, a similar legal process to license a cover version of a song. The "Masked Singer" might have gone through a similar process, but that would not cover public performances, nor te details of Halocene's arrangement. It is hard to see how rights to the specific arrangement would ha been lawfully transferred.

Conclusion

Copyright infringement cases are often very fact-specific, an I can't know what the details oif the facts are. But it sounds as if they might have a case.