Admit it, we have all done it. Whether you used Napster to download music illegally when you were in highschool, made a mixed tape for a friend, or put music behind your last Youtube video, none of us have paid for music properly in every instance. In most cases we know what is right and wrong but there are still many misconceptions about licensing music. In this article Matt Thompson of SongFreedom.com goes through 7 legal and moral misconceptions when it comes to using popular music.
1. Personal Use vs. Commercial Use - "As long as it's just for a single client for their "personal use" then it's not a commercial use of the song."
This is one we have heard a lot. Personal Use actually just covers the ability to listen to a song. Period. In fact, it really goes a step further and dictates that you can't play it in a commercial setting without a performance license, something you would traditionally get from ASCAP and BMI. No one has the legal right to do whatever they want with that song, just as just anyone can't do whatever they want with a photographer's images. If you want to use music in any sort of video then you need a synchronization license. While that's really the bottom line you just have to think about it logically. Is the music providing some benefit to your product? Is it in the background of your website to help create a certain feeling for visitors so they stay longer and are encouraged to buy from you? Or are you using music in a video that you're either selling to the client are using as a "pull-through" for one of your packages? Then you are profiting from the use of someone else's work.
2. "If I have a license from ASCAP and BMI then I'm covered for using the music."
ASCAP and BMI are both great performance rights organizations but they do not provide synch licensing. If you want to play background music in your studio then they are the places to reach out to. They also provide rights for the music you hear in restaurants, funeral homes, and lots of other businesses. But...when it comes to pairing music with images on the background of a website, in a slideshow, or any type of video, then you need a synch license.
To get a synch license you need to get permission from the publishing rights owner(s) and the master rights owner(s). That's where the fun really starts. Publishers represent writers for the written music and labels represent artists for the actual recorded music. Many publishers have contracts in place dictating that the writers have to give final approval for each synch usage. This is sometimes complicated by songs having multiple writers that may or may not be represented by the same publishers. We have actually cleared songs that had 12 writers and 6 publishers. So by the time we got the ok from basically 18 people we were not quite done yet. Then you can move onto getting the master rights for the song and you'll often find that the label has to get final approval from the artists. So now you've gotten approval from 20 different people. Congrats on getting your license approved. But here's the bad news...it's going to cost a LOT. Since your request has to go through licensing and legal departments and then finally accounting departments, there's a lot of time and people involved in this approval process. Then think about how this is getting split 20 ways. What does all that mean? It means that you'd have to shell out at least $15,000 for one song to make it worth anyone's time. All of this is of course assuming that you have a way to contact everyone and are able to understand licensing terms when requesting a license. All that said, it's obvious why Songfreedom being able to license for $24.99/song is nothing short of amazing.
3. "Artists just want to get their music out there and the labels are just being greedy and are making things difficult."
While some artists are more liberal than others when it comes to what their music is used for, others are much pickier. Some artists may not believe in the institution of marriage or have some religious differences and do not want their music used for wedding videos or slideshows. The same may be true for writers of a song. As much as we would like to be able to license their music to our members we of course have to respect their decision and discretion as artists. This is a real example of something we have encountered where the label, publishers, and writers were all happy to get a particular band's songs on Songfreedom but it wasn't something the band wanted to license their music for.
On the flip side, sometimes an artist may have no issues with their music being used for a particular project but that doesn't mean you have necessarily gotten the writers' permission. If they are one in the same then you're a little better off. However, if they have signed with a publisher and produced the music on the label's dime and have an agreement in place with them, then you'll still need permission from the publisher and label to be legal.
4. "I can use whatever I want as long as I acknowledge the artist or other rights owners."
While it may seem this way sometimes because of what pops up on YouTube here and there this is not the case. Because of some agreements in place with YouTube and publishers for streaming rights from User Generated Content, some things may stay online for a bit once they are flagged but there is no telling what might happen for sure. YouTube's Content ID system may be set to do different things depending on what particular song is used. Then at the end of the day the labels never approved anything so you might as well expect a take down notice from them. Now that the actually license approval process has been outlined it of course wouldn't make sense for someone to just be able to throw up a few words and have something be legal. Many photographers have run into similar issues with their work being used without permission or payment even when credit was given.
5. "I'm really doing the artist and everyone else a favor by including their music in my video since it helps get their music out there."
This one is just hilarious sometimes. I have actually heard someone make this argument for a Black Eyed Peas song. Really? Yes, I'm sure The Peas and Universal music will be eternally grateful for you getting their music out their since no one could have possibly heard it before the same exact way you did - on the radio, Pandora, Spotify, iTunes, etc. They seem to be doing just fine. This argument could almost hold a little water if you're talking about a completely independent artist but again, most artists want to have the right to give permission (or not give permission) when it comes to their art and copyright law doesn't really bend because you feel that you are doing what is in their best interest.
6. "These labels have billions of dollars so they don't really need the money. And I've heard that the artist doesn't even get that big of a percentage so I really don't like the labels anyway."
Do labels have billions? Well, collectively. But should that really matter? Just because McDonald's is a billion dollar corporation it doesn't mean that I go in there demanding free cheeseburgers or demand to be able to get a bunch of them at a discounted price and then open up my own burger shop and sell them for a profit. Life doesn't work like that. The only difference is that one thing is a tangible product and the other is not. People seem to act differently sometimes when things are intangible.
As far as what labels pay their artists...that's between them and their artists. These artists are big boys and girls that made the decision to enter into an agreement. The reality? It's just like anything else and it comes down to the success of the artist. Parachute and Lady Gaga are both Universal artists. Does Lady Gaga have WAY more money than Parachute? Probably, but is that the label's fault? If one product sells better at Wal-Mart than another do people blame Wal-Mart? And Wal-Mart has really strong negotiating power and get products they distribute for pennies on the dollar so should we argue that they aren't paying their vendors well enough and just go in and take what we want? No, that doesn't make any sense. The bottom line is that it makes no difference who gets paid what via their agreements, it has no effect on copyright law or what the right thing to do is.
7. "Using music illegally is really just like speeding on the highway. It only matters if you get caught and they will only pull you over if you're going faster than everyone else (your videos are getting a ton of views)."
This is actually an ok analogy...to a degree. Admittedly, I've gone over the speed limit while driving and I have gotten a ticket here and there. But I was prepared to pay the fine for the crime I did. If the fine was $150,000 per ticket I definitely wouldn't speed, and I don't think anyone else would either. As far as some videos being more visible than others...maybe. However, there have been about 12 lawsuits in the last 9 months for photogs using unlicensed music and only a couple of them had any videos with any type of notoriety. It's the Internet, anyone can see anything you do at any time. Someone having to payout $150,000 (or more) is a horrible life changing things that hopefully no one else will experience.