[This post was written by two music experts on the Manatt Digital Media team -- long-time experienced and connected music attorneys David Rappaport (out of our NYC office) and Jordan Bromley (who works down the hall from me in LA). Together, they represent some of the biggest and most innovative artists in the music industry. A modified version of this post originally appeared in Newsweek.]
Last month we received a call from a woman who made an unassuming video of her daughter's wedding and added her favorite song as the musical bed. She was frightened, a little angry and perplexed by the copyright infringement letter she received from a major music publisher.
"All I did was make a video for myself. I'm not selling it!" Unfortunately for her, she used a song that was owned by someone other than her...in this case, a music publisher that was intent on enforcing its rights.
Granted, most music publishers don't go after people with aggressive letters, but it is no secret that video creators are constantly surprised by rightful infringement claims from songwriters, publishers and record labels. Most people don't know the correct way to "clear" music in their videos. Some don't understand that there is no "safe harbor" for use of music in a video. No matter how short, no matter how limited the views, no matter how you credit the creators…if you use it, and you don't clear it, you're an infringer.
HERE ARE 5 THINGS TO SAVE YOU FROM AN UNEXPECTED SURPRISE:
1. There are two "sides" to every song – the musical composition and the master recording. Think of the composition as the sheet music, the song that you sing. Think of the master as every time you record that song. The composition is eternal, and the master is the recorded moment where you perform that eternal work. You HAVE to "clear" both.
2. The "clearance" is called a "synchronization license" ("synch license" for short) since you are "synchronizing" the audio to the video. Boiled down, you need a synchronization license from the composition owner AND the master owners (it can be several people if various people wrote the composition/own the master) before you share your video with the world. It doesn't matter if you're making money or not, and it doesn't matter how little of the composition and master you use in your video; if it's a recognizable part of the composition, don't take a risk. If it is ANY part of the master recording, you need to clear it.
3. Become familiar with the concept of "Most Favored Nations" (or "MFN" for short). This is a way the various owners of the music make sure no owner is earning more on the license than any other owner. It is also a way to legally "game" the clearance system. If you can find one sympathetic owner to grant a less expensive or gratis license, you can use that to get everyone else to come in on an MFN basis with the first licensor. This takes some finesse and knowledge of the major publishers and labels that own a majority of the world's musical content.
4. You don't need a license from every co-owner of the composition or master. There is a more complicated way around a stubborn songwriter, publisher or record label in the rare instances where there are co-owned masters. Put simply, under the real property concept of joint tenancy, one owner can grant a non-exclusive license for 100% of the work, provided that the other owners are paid their respective portion of the income made from the license. If you need that license – and you can't get it from all owners – this is a way around replacing the song.
5. Don't forget about public performance licenses! If you're exhibiting the video on your own website, you need to obtain a public performance license in addition to the synch license. This affords you the right to play the music in a public venue...in this case, on a public facing website. For more information, visit www.ascap.com / www.bmi.com / www.sesac.com / http://globalmusicrights.com/