By Rebecca Lord & Nate Wise
Struggling to navigate copyright laws? Concerned about mistakes you made before you knew the laws, especially your YouTube videos, which are globally displaying your inadvertent copyright infringements? Or are you new to the world of copyright laws and looking for a basic guide? Then this article is for you.
Following are definitions and explanations of must-know licenses for musicians along with some how-to’s and practical resources. Budgetary issues will be discussed and thoughts will be shared for those who are learning they have inadvertently broken copyright laws. And finally, some FAQs.
WHY YOU NEED TO KNOW
Copyright (or the right to copy) is designed to protect certain rights of creators legally, giving them the right to control and profit from the use of their works in certain ways. Creators can manage their own rights or give them to others such as publishers, often in exchange for royalties.
We are accountable for obeying copyright laws, whether or not we know them. How many of you, like myself, obtained multiple degrees in music and knew only that you needed to purchase adequate copies of music rather than duplicating? Purchasing sheet music only grants rights for non-public performances and a few public performance exemptions noted in the Copyright Act Section 110 (1-4).
“Mistakes,” officially known as infringements, carry certain risks. Worst-case scenario: lawsuits with fines up to $30,000 per infraction (plus possible legal fees on both sides) for those who have ignorantly infringed, and $150,000 for those who have knowingly infringed. Lawsuits for smaller infringements are more doable than ever, thanks to the recent Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act). Music industry attorney Erin M. Jacobson, Esq., suggests this act will allow action “for infringements that were previously too small for expensive litigation. There will likely be an increase in policing infringements.”
The good news is knowledge is power and learning some basics and adopting a conservative approach now can avoid risks in the future.
AN IMPORTANT DISCLAIMER
Please do not consider this article to be a substitute for obtaining legal advice from a qualified attorney licensed in your state. Nothing in this article or the related documents should be construed as legal advice – instead, all information, content, and materials available herein are for general informational purposes only. Music copyright can be complicated and you should visit with an attorney if you have specific questions about how the law relates to your situation.
WHAT YOU NEED TO KNOW
Before we dig into licensing, here are some definitions you will need to know.
Public vs. Non-public
Public performances of copyrighted materials generally carry licensing requirements (unless one of the exceptions apply). Knowing the legal definition of public is therefore essential. The Copyright Act (Section 101) specifies:
To perform or display a work “publicly” means —
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work … to the public, by means of any device or process, whether the members of the public … receive it in the same place or in separate places and at the same time or at different times.
This means that small studio recitals in a teacher’s home or small gatherings of family and friends do not require licensing, but more “public” performances, extending to publicly available spaces and groups of people do.
Dramatic vs. Non-Dramatic vs. Grand Rights
Certain types of licenses specify they are only for nondramatic, dramatic, or grand rights. Following is a basic overview of these categories. Please note that exact definitions and guidelines can vary based on the performance-rights organization (PRO) and the type of use (e.g., live performance vs. television). It is always wise to ask the copyright holder or licensing agent if there is any question.
- Nondramatic Performance: “a musical composition that is not woven into … a plot and its accompanying action. The mere singing of a song [even if from a musical or opera] … would constitute a nondramatic performance” (Kohn, 2019, p. 1272).
- Dramatic Performance: “a performance of a musical composition that is woven into and carries forward a definite plot and its accompanying action” (Kohn, 2019, p. 1272) but is not a fully-staged dramatic work such as a musical or an opera. The American Society of Composer, Authors, and Publishers (ASCAP) provides greater detail and examples.
- Grand Rights: generally refers to the rights to perform a large portion of or an entire dramatico-musical work (e.g., an opera or musical). Grand rights are usually not obtained for a single song or other element from a dramatico-musical work, although television performances have separate rules and criteria.
Here is a table of licenses you may need for public performances of nondramatic, dramatic, or grand works (special rules for television or film studios not included).
|Licenses & Descriptions
|How to Obtain
|Public Performance/Broadcast License: Permission to perform or transmit non-dramatic performances (e.g., no full musicals or operas) to the public. Includes digital/online video streaming, but not on-demand views or postings (those that allow a user to click and enjoy whenever they would like or after an initial stream).
|Most performance venues and major social-media hubs (e.g., YouTube, Facebook, Instagram TV, TikTok) contract directly with large PROs, who cover most songs (you can verify by searching for your songs on their sites). For any songs that are not covered, this license can be obtained by the copyright holder of the song.
The PROs:ASCAP BMI (Broadcast Music, Inc.)SESAC (Society of European Stage Authors and Composers) GMR (Global Music Rights)
|Mechanical License: Permission to make and distribute audio-only recordings–physical and/or digital.
|The Mechanical Licensing Collective (TheMLC), Harry Fox Agency , MusicReports or the copyright holder.
TheMLC.com is newly functioning as of 2021 and provides blanket licensing for digital and/or physical audio recordings.
|Compulsory (Mechanical) License: Permission to create arrangements or “covers” and record and distribute audio-only, physical CD’s/vinyls (no digital) of previously-recorded songs (official recordings by original creators). This “compulsory” license cannot be refused if the correct process is followed.
Note: Does not permit sharing of sheet music or public performance of new arrangement(s). Separate licensing is required in these cases. However, the recordings can be played at live events.
|Send a letter called a Notice of Intention (NOI) to the copyright holder or the licensing division of the Copyright Office (added fees), along with payment of prescribed royalty rate each month sales are made.
Royalty rates are fixed. Find more details on copyright.gov.
|Synchronization License: Permission to synchronize or put together audio and visual elements (needed for recording video, creating music videos, slide shows, other visual/audio combinations).
|Contact copyright holder/music publisher or pay a licensing agency such as Tresóna or Easy Song Licensing (added fees for their services, but can be time savers).
|Custom Arrangement Licence: Permission to create arrangements or adaptations, officially known as derivative works. Here is further information regarding what constitutes a derivative work and who will own it.
Note: if you are only producing a physical audio recording such as a CD, a compulsory license includes this permission.
|Contact individual copyright holders or pay a licensing agency such as Tresóna or Easy Song Licensing.
|Master License: Permission to use copyrighted sound recordings in performance (e.g., an accompaniment track or background music).
|Contact individual copyright holders or pay a licensing agency such as Tresóna or Easy Song Licensing.
|Print License: Permission to “make printed copies of musical notation or lyrics, or both” for any purpose (e.g., duplicating sheet music, printing lyrics in the program or on the screen). If in digital format, the license needed is a digital print license.
|Contact individual copyright holders or pay a licensing agency such as Tresóna or Easy Song Licensing.
|Dramatic Performance License: Permission to perform a dramatic performance (one in which the song is integral to a plot in your specific performance), but not a full production of a grand musical work.
|Grand Rights License: Permission to perform a significant portion of or an entire grand performance or musical/dramatic work (e.g., an opera, operetta, or musical). Encompasses rights to use the script, music, scenery, costumes, and choreography.
|Contact individual copyright holders.
|Performer Permission: Any time an audio or video recording is made or distributed, the Copyright Act requires consent or official permission of the performer (section 1101 title 17).
Some states have additional rights of privacy of which you may need to be aware.
|Options may include: Forms that performers (or guardians) sign, listing current and future recording uses. For classes, permission can be written into the prerequisite for the course.Contracts for members, employees, or guest performers. Some institutions have standard performance contracts. Guest performers will often bring their own contracts, and any differences will need to be negotiated.
This list is long, and we fully acknowledge that working with copyright laws can be challenging! The Copyright Act, established in 1976, has not been fully adapted to deal with changing technology. This has often left copyright holders in the driver’s seat to navigate through enormous changes, resulting in widely ranging fees and licensing terms. As attorney and copyright specialist Katy Baron has noted, “Copyright law moves slowly, but technology moves quickly” (Pelloquin et al., 2020).
Common Performance Examples & Licensing Needs
We have assembled several examples of common performance scenarios and their licensing requirements. To see these examples (e.g., a concert of a variety of songs that will later be posted on YouTube, the performance of a song from a musical with new choreography, or the performance of a new song), view this list. And when in doubt, ask. Most publishers will help you identify your licensing needs if you explain in detail how you would like to use their copyrighted works.
Are There Any Exemptions?
Yes! First, keep in mind that these laws only apply to non-public domain works. There is an enormous body of work that can be used without licensing or restrictions. There are also two types of exemptions written into the Copyright Act:
- Fair Use: Fair Use exists in the Copyright Act (section 107) to try to promote progress and to balance copyright laws with the freedom of speech. A fair use does not require permission or licensing from the copyright owner. Knowing how and when it might be okay to use copyrighted materials fairly is complicated. Here are some guidelines.
- Church, Education, and Other Not-For-Profit Performances: There are performance-licensing exemptions for these categories as well. Please read the details carefully as they are specific and limited (e.g., for churches, exemptions apply to worship services, not other activities). Also note that exemptions are limited to performance licensing and do not cover streaming, reproducing, arranging, printing lyrics, or playing recordings. Here is a document providing additional information and a few resources for schools, independent music teachers, and churches.
HOW THIS ALL WORKS
With the added steps, potential expense, and wait times, it is important to get organized and start early when planning performances that will require licensing. Here are some practical tips for your licensing journey:
- Start early. Response times for licensing generally range from the same day to two months (it is possible to receive no response as well). It is wise to select repertoire well in advance, determine licensing needs, and make initial requests at least two to three months before the first rehearsal. If you do not receive a response, follow up or simply choose another song. Having alternate song options decided in advance can be helpful.
- Get Some Help. Engage a student, member, parent, or other volunteer to help with tackling permissions. Give them your repertoire list, your licensing needs, a copy of this article, and have them start the process. You can always jump in later to negotiate and agree to the final quote and take care of any licensing fees.
- Use Directories to find Copyright Holders: Most copyright holders and their contact information can be found by searching on ASCAP & BMI’s Songview or TheMLC.com’s Public Work Search. GMR also has a search catalog. It is best to start here rather than with the copyright notice on the music itself, as it is common for copyrights to change hands and you may find yourself in a wild goose chase. If you strike out, you will be stuck doing the goose chase. The Library of Congress can provide copyright owner information for officially registered works. 1978-current publications can be found online, and earlier dates can be found by visiting a branch or hiring an employee to conduct a search, although that can be pricey. U.S. Copyright Office: (202) 707-3000 or 1 (877) 476-0778 (toll free); www.copyright.gov.
- Make Your Requests: If you have enough budget, a licensing agency such as Tresóna or Easy Song Licensing can take care of all of your licensing needs for an added fee. This is the most efficient method. If you will be taking care of licensing on your own, search for a licensing request form on the publisher’s website or email your request using the contact found on Songview or the Public Work Search. Here is a template of a letter you can adapt for your request. Note: publishers are sometimes willing to negotiate, but licensing agencies are not. Ben Fales, general manager and executive producer of BYU Music Group (Brigham Young University’s record label group), has found greater success directly emailing publishers and requesting permission for a video to be shown only on YouTube, rather than an all-inclusive sync license. In his negotiations, he also offers to include links to the publisher’s website so others can purchase the sheet music of the song performed in the video, and links to the final published video so publishers can monetize even if the Content ID system fails to pick up the video as a match.
- Get Organized: Create a folder in which to store all licenses. It also helps to keep a list or spreadsheet as you go through this process, checking off licenses as you obtain them, making notes of individual contacts you establish and can use in the future, and making any additional notes (e.g., publishers with rates in your price range).
How Much Will This Cost, and What If I Can’t Afford Licensing?
Licensing fees range widely from free to thousands of dollars per license. Compulsory mechanical licenses, with their per-copy royalty rates, are the only licenses with legally fixed rates. Publishers have different rates and often base them on a number of factors.
If your budget is small or non-existent, we salute you for efforts to continue making music! As daunting as this information can be, there are still many ways to perform music publicly for free or little expense! Details will be shared tomorrow (May 26, 2021) in our article “Choirs with Limited Budgets: Top Ten Solutions for Copyright Compliance on a Dime.”
YIKES! I HAVE INFRINGED! WHAT CAN I DO NOW?
If you are realizing that you have infringed on copyright laws, you are not alone! While this article does not constitute legal advice, here are a few thoughts. First and most importantly, step up your game and do things right moving forward. An ounce of prevention is worth a ton of cure.
If you have material out there that is currently infringing (e.g., YouTube videos lacking sync licenses), unless you are comfortable with the risk level, your safest option is to take it down. If you want it out there, you can apply for licensing and re-post once you have the requisite license(s) in hand. Penitently requesting and paying for a retroactive license is sometimes possible, but it is also risky.
If this article has caused you to quake in terror of numerous $30k+ lawsuits coming your way, you can probably breathe a bit easier if your audience/viewership is small. While copyright infringement certainly brings litigation risks, in this industry it is common to “feed the pig and slaughter the hog.” In other words, those getting millions of views and possible profits are most likely to be targeted for legal action. However, smaller-scale infringements are not risk-free, and the new 2020 CASE Act makes smaller claims much easier to pursue. It is difficult to know how aggressive copyright holders will be, or how damages will be handled until things get codified and established and the Copyright Claims Board (CCB), the decision-making tribunal tied to the CASE Act, is fully up and running. (Note: the Copyright Office has issued a Notification of Inquiry, inviting public comments regarding the CCB and its regulations and procedures. Comments are currently being accepted).
Q: What if I want to perform music that is out of print?
A: If it does not have a CC license or belong in the public domain, you will still need to obtain all necessary licensing and permission.
Q: What if I am unable to find the copyright holder or they do not respond to my requests?
A: Keep trying until you succeed or choose a different song. Such works are still fully protected under copyright laws. Efforts have been made to pass legislation that would allow the performance of “orphan works” (those whose copyright holders are impossible either to identify or to contact), but these efforts have not yet succeeded.
Q: From whom do I need permission if there are multiple copyright owners of a work?
A: Attorney Jeremy Brook explains, “Under the law when there’s more than one copyright owner, there’s joint authorship; any of them can license the work without specific permission from the others. They just have to account to them. In practice though, there’s usually agreement between songwriters. . . . Best practice is usually to go try to get the okay from everybody … if for no other reason than to just avoid kicking a beehive down the road” (Sharp et al., 2020).
Q: What permissions would I need to perform or arrange a medley?
A: If you are performing an arrangement that has already been published, the necessary permissions would be the same as those for any published song.
Obtaining permissions for arranging a medley can be challenging and costly. Each song used requires its own arrangement license/permission since including several separate works together as a single performable piece would constitute a derivative work for each of the selections. A copyright owner/publisher may refuse permission for any reason.
And, if permission is granted, according to the Music Publisher’s Association of the United States, “there may be restrictions on the length of time, context, or usage of the derivative work in live performances, sometimes allowing only for specific one-time events. It is the right of the copyright owner to allow or restrict … usage. … Note that it is common practice for publishers to insist on owning the arrangement (it is, after all, based on their copyrighted work), and then granting nonexclusive usage rights to the arranger under a license.”
It is also important to note, when performing medleys from musicals, the PRO blanket licenses DO NOT permit dramatic performances of songs. The songs can be performed only in cabaret style. A blanket license from ASCAP, BMI, SESAC, GMR, permits neither the “use of dialogue from the show nor sets, costumes and/or choreography that invoke the original show.”
Q: If a copyright claim has been made on my YouTube video and I have been told it is not a copyright strike, does that mean I am safe from legal repercussions for any infringements?
A: Maybe. YouTube has a publishing license with some music publishers which may render some videos “safe” from legal action. Further details can be found here.
Performing or posting copyrighted materials without securing the legally required permission(s) is inherently risky, and your experience will vary depending on your personal risk tolerance and/or that of your institution, especially given the potentially higher risks that now exist with the 2020 CASE Act.
Attorney Erin M. Jacobson, Esq., notes that “defending copyright infringement is exponentially more detrimental and costly than seeking the correct licenses before the work is used.” She brings us back to the spirit of the law, noting that “complying with copyright laws is extremely important, not only from a legal standpoint, but also for creators to respect the work of their fellow creators.”
Rebecca Lord has served on the choral/vocal faculty of Brigham Young University-Idaho and as Associate Director of Choral Activities at the University of California, Los Angeles, where she earned MM and DMA degrees under the tutelage of Donald Neuen. She also served as Chorus Master for Arizona Musicfest and Assistant Conductor for the Hour of Power choir. She has a background as a professional violinist, soprano, dancer, and actress.
Nate Wise serves the BYU-Idaho campus as the director of the Intellectual Property Office as a paralegal working with General Counsel to identify, protect, and administer intellectual property matters for the campus community. He earned a Master’s Degree in Education Technology from Lesley University.
- DeFord, Sally. Email to Rebecca Lord, March 27, 2021.
- Fales, Ben. Interview with Rebecca Lord. Personal Interview. Zoom, April 28, 2021.
- Jacobson Esq., Erin M. Email to Rebecca Lord, April 30, 2021.
- Kohn, Bob. Kohn on Music Licensing, Fifth Edition. Wolters Kluwer, 2019.
- “Creating Authorized Orchestral Pops Arrangements.” Music Publishers Association of the United States. October 29, 2019. https://www.mpa.org/arrangements/.
- Lord, Rebecca, Nate Wise. “Choirs with Limited Budgets: Top Ten Solutions for Copyright Compliance on a Dime.” Choralnet.org. American Choral Directors Association. May 26, 2021. https://choralnet.org/2021/05/low-budget-choirs-top-ten-solutions-for-copyright-compliance-on-a-dime/
- Pelloquin, Andrea, Katie Baron, Shari Molstad. “Copyright for Virtual Choirs: What You Can and Cannot Do.” Webinar from J.W. Pepper, October 1, 2020. https://www.youtube.com/watch?v=mLOLpPFlPQc.
- Sharp, Tim, Shari Molstad, Kent Draughon, Jeremy Brook, Allec Harris, Janice Bane. “Copyright Guidance for Singing in a Virtual World.” Webinar from National Association of Teachers of Singing, June 9, 2020. https://www.youtube.com/watch?v=14Sr2EM0y3o.
- U.S. Copyright Office, Library of Congress. Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. Circular 92. Washington, D.C.: 2020. https://www.copyright.gov/title17/title17.pdf (accessed April 26, 2021).
- WeAreTheHits.com. Email to Rebecca Lord. March 29, 2021.