Canelo imprint Abandoned Bookshop is on a quest to locate the surviving relatives of crime author Clifton Robbins as it prepares to republish two of his books which have been out of print for over 80 years.
First published with “huge success” in the early 1930s by Ernest Benn, but unavailable since then, Dusty Death and The Man Without a Face are the first of five novels by Clifton Robbins featuring Clay Harrison, a London barrister-turned-detective, and his clerk, Henry.
According to the publisher “little is known” about Robbins. He appears to have been born in 1890, in London, studied at Cambridge and worked as a journalist. He wrote nine novels between 1931 and 1940, but none of the books were ever reprinted and he had nothing published after that date. Some records suggest Robbins died in 1944, others in 1964, but “numerous enquiries, requests and years of research have yet to reveal any living descendants,” the publisher said.
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Pack said all royalties from sales of the books will be kept aside in the hope that a relative of Clifton Robbins will come forward to claim them.
PG makes no claims to expertise in the history of UK copyright law, but he understands that, since The Copyright Act of 1911, copyright extends for at least the life of the author plus 50 years. In 1995, the term was extended to the life of the author plus 70 years for all works that were subject to copyright protection at that time.
Thus, if Mr. Robbins died in 1944, absent UK copyright twists of which PG is unaware, his books would appear to be out of copyright. However, if Mr. Robbins died in 1964, they would appear to still be under copyright protection, assuming the author, or author’s original publisher, did whatever was required to protect his books under UK copyright law.
PG will caution that there may be facts not included in the OP that would impact the presence or absence of copyright protection for Mr. Robbins’ books. PG will appreciate any comments from those who know more about UK copyright law than he does.
As the world hurdles into week two of the Olympics, it pays to remain mindful of ongoing Rule 40 crackdowns by the International Olympic Committee.
Ian Schafer, CEO of digital agency Deep Focus, learned this the hard way when he became a target of the IOC’s ire this morning. The Olympic governing body disabled a tweet it claimed violated Rule 40 code, which is designed to prevent over-commercialization by unofficial sponsors.
His tweet, which was originally shared on August 14th, contained video of Olympic swimmer Katie Ledecky winning the gold medal in the women’s 800-meter freestyle final.
Schafer said he found a GIF of the NBC video on Reddit and converted it to a video before sharing it on his personal account. In the footage, Ledecky is shown beating her competitors by 11.4 seconds, completing the race with no one else in sight. The tweet had been retweeted more than 3,000 times (including by former Olympic gymnast Shannon Miller) before Twitter disabled the video and mandated that the content be removed.
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Twitter forwarded Schafer the email they received from the IOC listing the legal breaches this morning. “Your unauthorised display of the Material over the internet … constitutes a clear infringement of the IOC’s rights, in particular, intellectual property rights, and causes prejudice to the IOC and to the rights-holding broadcasters who have received exclusive authorization from the IOC to broadcast moving images of the Games,” the email states.
While Schafer said he understands the IOC’s concern over maintaining distribution and advertising rights over Olympic-related content, he is frustrated about the larger implications of Rule 40.
“[The IOC is] squashing engagement in favor of preserving the scarcity of its product,” he said. “From the average consumer’s perspective, we live in a world in which content isn’t scarce. It’s a digital world, product is infinite.”
Rule 40 is designed to maximize the exposure of official Olympic sponsors (who pay a lot of money to the International Olympic Committee) by prohibiting any promotion of non-official sponsors (including sponsors of individual athletes) during a period that includes the Olympic games (July 27 to August 24 this year).
Prohibited promotions include:
Any express or implied written/visual allusion to the Olympic Games.
Any use of the image of a Participant, taken during the Olympic Games, in combination with a company or brand.
Any reference to a Participant’s role in the Olympic Games, or to a Participant’s performances during the Olympic Games or during any past editions of the Games of the Olympiad or the Olympic Winter Games.
Any use of the “Olympic listed terms or expressions” alongside the Participant’s name or image.
“Olympic listed terms or expressions” include words like not only Olympic, Olympics, etc., but also Rio, Gold, Silver, Bronze, Effort, Performance, Challenge, Summer… and 2016.
The creative spark for my third novel – LOSING FAITH – was a line from the Coldplay song Viva la Vida. I wanted to use it as the epigraph for the book, following my junior high school English teacher’s recommendation that an opening quote helps set the tone. But in high school, I never had to pay to insert my favorite Beatles’ lyric in a term paper. Unfortunately, that’s not how it works in the real world.
Whether you can legally use someone else’s copyrighted material in your book is a question of “Fair Use”. That applies to any copyrighted material – be it other novels, newspapers, television movies, or song lyrics. The statute can be found at 17 U.S.C. § 107.
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Song lyrics present a unique challenge for raising a Fair Use defense (and for the lawyers out there, it is an affirmative defense for which the defendant bears the burden of proof and not an element of a copyright claim to be established by the plaintiff) because the author is almost invariably using a large portion of the copyrighted work. Even though I only wanted to quote two lines of the Coldplay song, it was 28 words out of 288 – or nearly 10% of the entire song. On the other hand, my novel was nearly 100,000 words, so the Coldplay song was going to be a very small portion of my work.
As a legal matter, the likelihood of succeeding in court on a Fair Use defense depends on several factors, but the most important for authors of commercial fiction are the amount of the song you quote (less is obviously better), and the effect on the potential market for the copyrighted work (making people less likely to buy the song is obviously worse).
But the strength of your legal defense will undoubtedly take a back seat to the real world consideration that your publisher will likely not want to take a chance on being sued, and will refuse to publish if there’s any quotation of a song lyric — no matter how few words — without permission. And even if you self-publish, you should consider that going to court on the issue is probably a bad idea because “winning” a Fair Use claim can be a very expensive proposition.
. . . .
I thought my publisher would get the necessary permission, and pay the required royalty. Once again, I found out that isn’t how it works in the real world.
Standard publishing contracts, like mine, contain a representation by the author that the work is original and does not violate anyone’s copyright. That means that most publishers will require the author to secure permission on his or her own.
In December, documentary photographer Carol Highsmith received a letter from Getty Images accusing her of copyright infringement for featuring one of her own photographs on her own website. It demanded payment of $120. This was how Highsmith came to learn that stock photo agencies Getty and Alamy had been sending similar threat letters and charging fees to users of her images, which she had donated to the Library of Congress for use by the general public at no charge.
Now, Highsmith has filed a $1 billion copyright infringement suit against both Alamy and Getty for “gross misuse” of 18,755 of her photographs. “The defendants [Getty Images] have apparently misappropriated Ms. Highsmith’s generous gift to the American people,” the complaint reads. “[They] are not only unlawfully charging licensing fees … but are falsely and fraudulently holding themselves out as the exclusive copyright owner.” According to the lawsuit, Getty and Alamy, on their websites, have been selling licenses for thousands of Highsmith’s photographs, many without her name attached to them and stamped with “false watermarks.”
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Since 1988, Highsmith has been donating tens of thousands of photographs of people and places in the United States to the Library of Congress, making them free for public use. The institution calls the donation “one of the greatest acts of generosity in the history of the Library.” The Carol M. Highsmith Collection is featured in the library’s Prints & Photographs Division, alongside the likes of Dorothea Lange’s Dust Bowl and Depression photographs.
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“The injury to Ms. Highsmith’s reputation has been … severe,” it continues. “There is at least one example of a recipient of a threatening letter for use of a Highsmith Photo researching the issue and determining that Ms. Highsmith had made her photos freely available and free to use through the Library website. … Therefore, anyone who sees the Highsmith Photos and knows or learns of her gift to the Library could easily believe her to be a hypocrite.”
Link to the rest at Hyperallergic and thanks to P.D. for the tip.
PG says authors are not the only creators who are sometimes badly treated by large commercial organizations that deal in creations protected by copyright.
PG also attests that Ms. Highsmith is an excellent photographer. You can see her professional website here and the collection of her photos she donated to the Library of Congress here.
[T]he EFF has just filed suit against the US government on the grounds that the Digital Millennium Copyright Act’s anti-circumvention provision, Section 1201, represents an unconstitutional restraint on free speech.
The suit takes aim at the practice of outlawing breaking DRM, with the Librarian of Congress permitted to make exceptions to the prohibition every three years, as well as outlawing any explanation of how to break DRM. The EFF calls this “an unconstitutional speech-licensing regime.”
“The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said [EFF Staff Attorney Kit] Walsh. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.”
The EFF is representing plaintiffs computer scientist Andrew “bunnie” Huang and computer security researcher Matthew Green. Huang is developing devices for editing digital video streams for his company Alphamax LLC that require the ability to break DRM in order to function properly. (Huang has previously shown up on TeleRead in connection with an open laptop he designed and successfully crowdfunded, so he’s not exactly new to advocating for open hardware.) Green is writing a book on circumventing security systems, and is investigating the security of medical record systems on a grant from the National Science Foundation—but he has had to avoid some areas of research because of concerns over Section 1201.
This is also, of course, the law that makes it illegal to crack DRM on ebooks so we can back up our purchases and convert from Kindle to ePub formats, or vice versa, or crack the DRM on DVDs or Blu-rays so we can rip the movies for mobile viewing.
PG does not condone the pirating of copyrighted materials, including books.
However, the anti-circumvention provisions of the Digital Millennium Copyright Act were mostly written by and for the big US movie studios and record companies (yes, PG is informed they’re still called record companies). The DMCA didn’t do much for indie authors.
PG believes that a reader who wants to read ebooks that were properly purchased on that reader’s iPad as well as his/her Kindle should be legally permitted to do so. Software or services that make this possible should be legal.
Of course, some people will use such software for illegal purposes. Some people will also use baseball bats for committing crimes, not playing baseball.
PG suggests that focusing on the prosecution of criminals who are performing acts which harm creators is a much better idea than writing laws which prohibit non-criminals from doing useful work that doesn’t damage the owners of copyrights in any way.
In theory, the idea of a small claims board that could adjudicate copyrights claims where the monetary value is not too high seems sensible. Federal litigation is very expensive and intimidating, so a small claims mechanism could make it easier for independent artists and small businesses to defend their rights.
Nevertheless, I have never been very enthusiastic about the idea, in large part because the devil is definitely in the details of any proposed scheme. The fear is that a small claims board could become, in the words of this 2012 article about the topic from Techdirt, just “a new venue for porn companies to coerce settlements out of internet subscribers.” If such a board appeared to be nothing other than a mechanism to make it easier not just for trolls but for Big Content in general to bully individual users and avoid the high costs of litigation, it would ultimately be harmful to the copyright balance that is already so out of whack in the U.S.
Unfortunately, when I look at the CASE Act (H.R. 5757) (it stands for “Copyright Alternative in Small Claims Enforcement Act) introduced last week to the House of Representatives, many of these fears seem realized. Based on the actual text of the proposed legislation, I am afraid this specific bill would have two negative impacts. First, I fear it would greatly increase the power of the Copyright Office in shaping copyright enforcement, which is not something I can contemplate with anything other than foreboding. Second, I think that the proposed legislation would make it easier for Big Content, and especially for the copyright trolls who are often their vanguard, to bully ordinary individuals and increase the phenomena of copyright enforcement by fear, rather than through the law.
. . . .
Two other provisions of the CASE Act leave me with a good deal of uncertainty and disquiet. One cause for this is the potential to bring an action before the small claims board claiming infringement even on an unregistered work. Copyright registration is required prior to bringing a lawsuit in federal court, but this bill would allow such a claim before the small claims board, with a greatly reduced potential for recovery of damages. So such a claim would cost less to bring, but also offer less reward for success It is not clear to me if an author, acting on her own, would be well served by such an option, or if registration, which does not cost much and would allow greater damages even in a small claims action and also provide access to the federal courts, would still be more sensible.
. . . .
Indeed, the whole area of damages in small claims is rather problematic. On the one hand, statutory damages for copyright infringement are ridiculously high, and often are used to chill legitimate uses because the risk of making a mistake is so great. So lowering damages in the small claims arena makes sense, and the CASE Act caps such damages at $15,000 for any one act of infringement and $30,000 in a single action. Certainly small claims without reduced damages would be intolerable. But these damages still strongly favor plaintiffs over defendants, since the costs of suing would be much lower, while the risk of being held liable would still be potentially devastating for individuals. Add to this the fact that it would be impossible, before the small claims board, to be awarded attorney’s fees and court costs even if one won, and the odds are still strongly tipped in favor of the big content companies with in-house lawyers and against individual users — artists, authors and students, for example — who might find themselves on the wrong end of one of these claims.
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Overall, I have to conclude that this bill is a power grab by the Copyright Office and would be a boon to the lobbyists for Big Content. The makeup of the proposed small claims board would be recommended by the CO from the ranks of lawyers with substantial experience in copyright infringement actions, which means that those very lobbyists would probably become the judges (called “Copyright Claims Officers”). And the work of the board would, according to section 1402(c) of the bill, “be generally directed… by the Registrar of Copyright.” The provisions would give the Copyright Office tremendous influence on copyright enforcement, which would please the content companies a great deal, but would undoubtedly further detract from a balanced law that genuinely encourages new creativity, rather than merely protecting profits for legacy works.
Link to the rest at In the Open and thanks to Beth for the tip.
PG wrote earlier about problems involved if copyright small claims were handled in federal court, which is where appeals from decisions of the Copyright Office Small Claims Court would go. If a large company received an adverse ruling from the Copyright Office Small Claims Court, it would almost certainly appeal that ruling to the federal court, if only to put itself into better negotiating position to settle the case on better terms.
Setting up a separate court as an extension of the Copyright Office (as opposed to the federal court system) concerns PG because of the reasons mentioned in the OP and also because the copyright small claims court holds a great potential for devolving into an organization filled with insiders where unwritten rules become as important as the written ones. Under the proposed legislation, there are three attorney hearing officers who will be doing their work at the Copyright Office, so everybody will almost certainly be located in the Washington DC area.
Perhaps PG missed it, but he didn’t see any provision in the proposed legislation that prevented any of the hearing officers from continuing to practice copyright law on the side, only that they wouldn’t undertake any activities that would conflict with their duties as hearing officers.
In federal district court, while a given district will have some local rules, those rules are written and available from the court. Individual federal judges will always have their quirks, but they won’t (usually) conflict with the local rules and Federal Rules of Civil Procedure.
The discussion of copyright trolling in the OP is also an issue for authors of both books and blogs. Fanfic authors and video creators could expect more harassment. Since there are only three hearing officers and two staff attorneys authorized under the proposed legislation, the potential for large plaintiffs to completely jam their dockets with mass filings is high.
Talking about the legislation as a small claims court for copyrights is a bit misleading if it creates an image of a state-based small claims court where landlord-tenant disputes or local merchants collecting unpaid bills are typically handled in a few minutes by a judge.
The CASE Act is 51 pages long, much longer than any state small claims enabling legislation with which PG is familiar. It includes a great many procedural provisions which don’t seem to be particularly easy for a non-lawyer to understand.
Rep. Hakeem Jeffries (D-NY) has introduced a bill in the House of Representatives that will give authors the right to resolve “small” copyright claims.
The bill, known as the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016, gives individual authors to right to defend their intellectual property rights without having to file a massive federal lawsuit.
The Authors Guild has been pushing for such legislation for the past decade. The Guild has been actively working with Congressman Jeffries’ office on this proposal for several months.
Link to the rest at GalleyCat and thanks to P.D. for the tip.
It’s been some time since PG has appeared in federal court but he doubts the caseload has lessened during that period. Certainly, there has not been a large increase in the number of federal judges.
While copyright small claims court is an interesting idea, should the legislation become law, PG suspects copyright claims would inevitably drop to the bottom of everyone’s to-do lists in federal courts.
Here’s a brief explanation why.
The big dogs in federal trial courts are the United States District Court Judges, nominated by the president and confirmed by the senate. Under the Constitution, these are lifetime appointments.
Most district court judges offload almost all routine and preliminary matters to magistrate judges. Magistrate judges are appointed by the district judges in a district and serve a term of eight years if they work full-time. Being a good magistrate is one way to be considered for a promotion when a district judge vacancy occurs.
Under tough federal drug laws, US District Courts handle a great many criminal cases. Because of due process and other constitutional protections (including the right to a speedy trial) afforded to those accused of a crime, criminal cases tend to rise to the top of everyone’s to-do list. Nobody in the federal court system wants a big drug dealer released on a technicality.
Magistrates do judge-type work as assigned by the district judges. Magistrates have the power to adjudicate misdemeanors and preliminary matters in felony cases, but the district judges will handle the felony trials. If an accused doesn’t like a decision by a magistrate, he/she can appeal that decision to the district judge.
One of the basic tactics of criminal defense lawyers is to delay, delay, delay. Every day their client spends outside of federal prison is a day when evidence can be misplaced, a key witness can recant testimony, a new lawyer in the US Attorney’s office can screw up a filing, etc., etc.
Unless the small claims copyright legislation prohibits doing so, PG suspects 99.9% of district judges will assign 100% of these cases to the magistrates.
In civil matters like copyright claims, the parties have a right to a trial before a district judge, but PG suspects most district judges would set trial dates for small claims copyright cases many years in the future. Such trial dates would be subject to multiple postponements because of time-sensitive criminal matters coming before the district judges.
Since the magistrate judges are appointed by the district judges and must be reappointed every eight years, the magistrates are focused on keeping the district judges happy. If a magistrate screws up a technicality in a felony case (not difficult to do) and causes the district judge to sign the necessary papers to send someone in prison and an appellate court reverses the district judge with a snippy opinion, the magistrate will be dealing with an embarrassed district judge whose face shows up on TV and multiple websites because his/her mistake allowed El Chapo to walk.
This is a long way of saying that the magistrate will be likely to pay much more attention to the long list of drug cases before the court than he/she will pay to a small claims copyright case filed by an author who is not a drug dealer.
PG’s bottom line is that a small claims copyright law is a nice idea that may not end up doing authors as much good as he would hope.
The day I feared since David Cameron stepped out the door of 10 Downing Street in May 2015 to declare victory for the Conservative Party came to pass in the early hours of June 24, when news spread that voters opted to take Britain out of the European Union, of which it had been a grouchy member for more than 40 years. “No man is an island,” John Donne wrote in his Devotions upon Emergent Occasions. “If a clod be washed away by the sea, Europe is the less.”
At the most basic level, uncertainty is always bad for business. Small British publishers—always conscious of cutting their cloth—will be cautious indeed. The multinational houses that dominate the industry will be modeling various scenarios. I hear that one has already put new projects and contracts on hold. And as with the 2008 recession, some will use Brexit as an excuse to rationalize, to put out to grass older and wiser, but more expensive, heads and hire younger, cheaper staff. (How must indebted British postgraduate students feel, their futures blighted?)
On both the high street and Amazon, sales of books (and much besides) in the U.K. will slump. Brexit will mean an increase in the cost of living. Inevitably, all that means at least a short-term cut in discretionary spending, as there was in 2008. Clearly that will have impact on British booksellers and publishers; lists will be trimmed—perhaps slashed—in response.
Publisher turnover will be further imperiled by the loss of European sales. After skirmishes a few years ago, it was broadly agreed that U.K. publishers should be able to acquire exclusive English-language rights for the entire E.U. market. But with Britain out of the E.U., Europe—including Ireland—becomes an open market, a battleground where the cheapest edition wins out. Academic and educational publishers will be able to continue to seek world English rights and possibly continue to obtain a full assignment of copyright, but trade publishers will not.
Moreover, U.K. trade publishers need Europe to give them scale; after all, their U.S. counterparts already have Latin America and sometimes Canada. The realignment will reduce the income of British authors for whom Europe is currently part of the home market so far as royalties are concerned. The situation could become desperate if—or when—Scotland gains independence in order to remain in the E.U.
When Garci Rodríguez de Montalvo wrote his version of Amadis of Gaul, he probably wasn’t thinking of payment. In medieval times, writing was either a gentlemanly avocation or a vocation sponsored by a gentlemanly patron. Books were hand-copied, so literature couldn’t be commercialized. Montalvo was a gentleman whose occupation was managing the city of Medina del Campo near Valladolid.
But only a century later, the printing press had come into being and had turned books into an affordable mass commodity. Miguel de Cervantes wrote Don Quixote de la Mancha, a parody of books like Amadis of Gaul, for money. Writing had become a profession, and professionals got paid.
What did Cervantes earn for Quixote? We don’t know, but we have enough clues to try to guess. Cervantes was poor before it was published and poor after it was published, so it wasn’t a huge amount of money. Everyone agrees on that.
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Don Quixote de la Mancha was published in two parts, the first in 1605 and the second in 1615. Cervantes didn’t plan on a second part, but after another author wrote a continuation, he decided to write his own.
In 1604, Cervantes was 50 years old and living in Valladolid. He had written a short story about Don Quixote, and he presented the idea of a novelization to publisher Francisco de Robles, who agreed and urged Cervantes to get it ready fast. Then the book was hastily edited (which explains the many errors in the text), printed on cheap paper with worn type, and rushed to the market.
Probably no one considered it a universal masterpiece at first, but the first edition of 1,000 copies sold well — in fact, it was immediately pirated in Lisbon. Cervantes had already won notice as a playwright, and this book cemented his reputation as a major writer.
He had received a 10-year royal privilege to print Don Quixote, which he sold to Robles for an unknown amount; the paperwork was lost. But he had sold an earlier novel, La Galatea, to Robles’ grandfather for 1,336 reales, of which he eventually only received 1,086.
Nieves Concostrina, a journalist with Radio Nacional de España, reported in the series Acércate al Quijote that he received no more than 100 ducados (which equals 1,100 reales or 37,500 maravedíes) for the copyright, which she estimates is worth only about €200 today.
Daniel Eisenberg, the former editor of Cervantes, the scholarly journal of the Cervantes Society of America, wrote that he probably received 1,500 reales (51,000 maravedíes), which he says would have been worth 500,000 pesetas in 1992, or €5,503.72 today. That’s better, but no J.K. Rowling.
The music industry is locked in an epic battle with YouTube, the most popular on-demand service, over the declining royalty rates the site pays per stream as it grows, and the difficulty in detecting copyrighted material from the mass of videos uploaded on the site.
The site voluntarily offers record labels a system to automatically block, monetize or mute their music on the site, matching audio files with 99.7% precision, the service says, and a chance for labels to cash in on user-uploaded content instead of merely resorting to sending takedown notices.
But many music rights holders say the YouTube system isn’t foolproof and requires them to conduct a laborious, manual search daily to track content and collect royalties. They worry that YouTube gains an unfair advantage with the lower rates it pays for music over other on-demand streaming services such as Spotify and Apple Music, which pay far more per play but together have relatively fewer paying subscribers at 68 million, according to the International Federation of the Phonographic Industry’s latest report.
The music industry believes its future lies with these streaming services rather than YouTube, which they fret is conditioning fans to not pay for on-demand tunes.
But YouTube, a unit of Alphabet Inc., with its more than 1 billion users, packs clout and reach that the industry can’t ignore. YouTube says it has paid about $3 billion to music companies since it launched a decade ago, and today half of its payout comes from user-generated content identified by its system called Content ID.
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Although the Alphabet unit pays out more overall each year, it now pays an average of eight one-hundredths of a penny ($0.0008) per play, and less than six one-hundredths ($0.0006) of a penny for user-generated content, down roughly 20% from a year ago, people familiar with the matter said.
The free tiers from SoundCloud and Spotify, by contrast, pay at rates up to six times the rate YouTube offers for user-uploaded videos, one rights holder said. Another said it gets an average of 35% more per play ($0.0011) from these free services than it does from YouTube videos. Paid subscription services pay even more per play, according to rights holders.
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But many in the music industry say the system isn’t automatically identifying many of their recordings when users have altered or combined them—or occasionally for no apparent reason at all. Furthermore, labels charge that Content ID doesn’t scan the YouTube channels managed by major TV networks and smaller networks such as Fullscreen and AwesomenessTV, many of which feature amateurs covering popular songs.