by Andrew Keyes & Daniel Lopez
Music content is in almost every aspect of today’s era of new media. From Twitch’s video game streamers to YouTube’s lo-fi hip hop video streams, the use of popular music in video content is everywhere. While embedding Lizzo’s “Truth Hurts” into your video content may help attract a wider audience, it also presents a set of legal challenges that can be very confusing.
Any popular track that you, as a content creator, might consider using in your own material will have certain copyright limitations. Generally, if you want to use a popular track that’s not yours, you’re going to have to get permission from the owners and administrators of the copyrighted material in that track. This article will help shed some light on what music rights video content creators and distributors must license, who they need to license the rights from, and some key deal terms in the respective license agreement. Since the requirements differ depending on whether you are producing the content or distributing it, these will be addressed separately.
Music Rights Needed for Video Content Creators: Synchronization Licenses and Master Use Licenses
Imagine that you’re putting together a video trailer for your upcoming event and, while searching through your iTunes library, you come across a song that perfectly captures what you had in mind. If you want this track in your video, you’re going to need two different licenses: a synchronization license and a master use license. You’re probably wondering, why do I need two different licenses for a single song? Well, that’s because whenever you listen to recorded music, you’re actually listening to two different copyrighted works: the composition (sometimes referred to as publishing rights) and the sound recording (sometimes referred to as a master recording).
For musical compositions, copyright protects any element of a song that can be written down on sheet music, such as lyrics, melody, rhythm and chords. For sound recordings, copyright protects only the particular recording made in a recording studio (or really anywhere you’re able to record). The musician and songwriter aren’t always one and the same. Jimi Hendrix’s iconic recording of “All Along the Watchtower” in 1968 was originally composed a year earlier by Bob Dylan.
A synchronization license, or “sync” license, allows content creators to integrate popular tracks (or less popular tracks for that matter) into video content. These licenses are negotiated directly with the owners of the musical composition. For lesser known artists, a sync license will generally only set you back a few hundred dollars. But if you plan on integrating a slightly more well-known track, let’s say “Revolution” by The Beatles, that’s going to set you back at least a half a million dollars, which is what it cost Nike to use in their 1987 Nike Air ad spot.
The musical compositions are generally owned by the original songwriter or by the music publishing company that acquires the song from that songwriter. The owners’ contact information typically can be found at the website of any of the three performance-rights organizations (PRO’s): ASCAP, BMI, and SESAC. Once there you can search for your desired song and the website will generate a list of all of the song’s owners. With that information in hand, you must individually license each party’s respective share of the song.
After acquiring a sync license, you then need to get a master use license for the sound recording being used in your video content. The sound recordings are almost always owned by record labels, and they will generally license the song to you at the same fee you paid for the sync license. If you’re trying to find the record label for a particular song, Discogs will usually have the information you need to get the master use license. Unlike with sync licenses, with master use licenses you’re most likely only going to have to deal with one party, the record label.
Music Rights Needed for Video Content Distributors: Performance Licenses and Mechanical Licenses
If you are distributing video content over the internet, you will need both a performance license and mechanical license for any compositions contained within that video content. Unlike sync licenses, performance and mechanical licenses only apply to musical compositions, not sound recordings. Digital distribution platforms like YouTube are required to get both performance and mechanical licenses, meaning you don’t have to worry about getting these licenses if you’re distributing video content through them.
Performance licenses are granted by copyright owners to allow others to, you guessed it, “perform” their works to the public. While there are many ways to perform a work, “transmission” is the most prevalent, which includes digital distribution over the internet. While going directly to Cardi B to obtain a performance license for “Bodak Yellow” is technically possible, it is generally easier to get performance licenses from a PRO. PROs provide blanket licenses to licensees, allowing a “music user” (what PROs call their licensees) to use a wide variety of music without having to individually negotiate with the copyright holders. ASCAP, BMI, SESAC, and GMR are the main PROs in the United States. Each PRO represents different artists, so you should consider getting a license from each PRO in order to cover your bases. Performance license fees are usually calculated on a percentage of revenue basis, with a higher rate charged to services that offer more interactive song-selection features to consumers. So, a non-interactive internet radio app like Pandora pays lower performance license fees than a fully interactive streaming platform like Spotify.
Mechanical licenses allow licensees to “reproduce” copies of musical works. While this traditionally was understood as making copies in the form of CDs, vinyl LPs, and the like, the meaning has broadened to account for modern technological advances. Today, a digital service needs mechanical licenses for “reproducing” musical compositions if (i) the service creates a copy of the song on the user’s hard drive at any point, and (ii) if the service allows users to choose the music to be played in an interactive manner. If your video distribution platform operates like a traditional TV channel, with pre-programmed content not chosen by the viewer, you don’t have to worry about getting a mechanical license. However, if you’re like Spotify or YouTube, and the viewer can choose which videos to play in an interactive manner, you should consider getting mechanical licenses from one of the two main mechanical licensing agencies: Harry Fox Agency or Music Reports.
With this introduction to music licensing under your belt, you’re ready to start producing and distributing video content with your favorite DJ Khaled tracks.
U.S. Law Group’s Entertainment and New Media and Intellectual Property practice groups represent many clients in the digital media industry who produce and distribute digital video and audio content. If you have any questions on music licensing and other digital media issues, be sure to contact us.