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13 July 2020
The perfect addition to any project is music. Whether it involves making a video ad for a product, including music in a post on a company website, TikTok or YouTube, posting an at-home workout video for clients, using music at corporate events or playing music at a bar or restaurant – music is a vital part of society. However, music is also the most common reason that content is muted or taken down from social media, in addition to exposing users to potential liability for copyright infringement and related monetary damages.
Apart from a few exceptions, the use of someone else's music without their permission is an infringement of their copyright.(1) This article sets out some fundamentals to assist in determining the type of licence that an average company would need in this regard and some potential alternatives. The bottom line when planning and budgeting for music in a project is to get the proper rights and permissions in place before pressing 'play'.
There are two primary copyrighted works for every song: the musical composition and the sound recording. The musical composition consists of the music and any accompanying lyrics. Publishing companies commonly own the rights to musical compositions, but composers and songwriters can also hold such rights. A sound recording is the specific fixed, recorded version of a musical composition and is most often owned by a record label. Someone who writes, records and performs their own song can own both copyrights in the song. However, there are usually many more people involved in the making of one song. Therefore, requesting permission to use a song typically requires obtaining licences from various parties.
The most common licences needed to use songs for various projects common to companies are master use licences, synchronisation (sync) licences, public performance licences and mechanical licences, although this is by no means an exhaustive discussion of every type of licence within the music industry. More than one or a combination of licences may be required, depending on the nature of the project.
A master use licence is needed to use a specific pre-recorded version of a song or a sound recording in either an audio or visual format. For example, to use an original recording from an artist's album would require a licence from the record label for the use of the sound recording.
Master use licences are usually needed in conjunction with sync licences. A sync licence is needed for use of a musical composition in an audiovisual format. That is, when audio is 'synced' with video (eg, in an advertising video), permission is required from the author of the musical composition (irrespective of whether a cover or recording of the song is used), which is usually the music publisher, in addition to the master use licence.
A public performance licence is required if a song is played to an audience outside of small private groups of friends or family. A few common examples include playing music at a conference, bar or restaurant or uploading a song to a website, in addition to other uses, including broadcasting. These examples constitute public performances. Such licences are generally obtained through performing rights societies, which licence "the public performance of nondramatic works on behalf of copyright owners of such works".(2)
A mechanical licence is needed to physically reproduce a musical composition. For instance, to record a cover of a song and reproduce the song in audio-only format (eg, to a streaming service, CD or MP3) requires permission from the author of the musical composition. Usually, the author will have an agreement with a third-party mechanical licence society (eg, the Harry Fox Agency), through which permission can be requested.
Keep in mind that obtaining the necessary rights for a project can take time and money. Therefore, before seeking rights from a major music industry player, given them the necessary lead time and budget accordingly.
There are a variety of options for incorporating music in content without infringing on copyrights if the necessary rights to a first-choice song are unobtainable. For example, permission is not required to use songs that are in the public domain, because they are no longer protected by copyright. However, the public domain is not nearly as expansive as many believe. Some musicians also licence their songs through Creative Commons with certain restrictions or credit requirements. Be sure to abide by the licence requirements. There are also various companies that licence a collection of music that has been pre-cleared for common media uses. These companies are a one-stop shop and have the authority to licence every aspect of the copyrighted work. In addition, consider commissioning originally written music with some advance planning.
For further information on this topic please contact Linda J Zirkelbach, Meaghan Kent or Danae Tinelli at Venable LLP by telephone (+1 410 244 7400) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Venable LLP website can be accessed at www.venable.com.
(1) At the time of writing, some deals have been reached, or are in the works, between certain platforms and music companies (but by no means all). This is an area to watch as it develops. Be sure to review the copyright terms and policies of such platforms before posting or consult with a copyright attorney for further clarity.
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