A basic guide to music copyright for online video

A basic guide to music copyright for online video

Posted on: 16 November 2016

It's that time of year again. John Lewis and Sainsbury's are fighting it out for the title of most heartwarming Christmas advert. The competition for the hearts and minds (and wallets) of Britain is upon us.

One of the measures of success for these adverts every year is the soundtrack. Of course, very few organisations have the budget to spend on musical superstars, Oscar-winning songwriters, and multi-millionaire comedians. Most video content doesn't need it. But, it's fair to say that music can make or break a video.

Therefore, choosing which music track to use in a video is a key decision in any production. And copyright and licensing are one of the most important factors.

A basic guide to music copyright for online video from Ember Television

Recently, I had to disappoint a client when I gently broke it to them that we couldn't use Oasis in their product video. If they had the budget, it wouldn't have been a problem. But I'm pretty sure that after getting quotes from the publisher, drawing up contracts for master rights and publishing rights (two separate contracts, possibly another with the record label as well, thrown in for good measure), signing the deal, as well as coming to an agreement with PRS for Music for the performance license, it wouldn't have been worth it.

So, a basic understanding of copyrights and licensing can help manage expectations of what's available, and how much to budget for it.

The good folk over at Tubular Labs have put together a useful Q&A about what you need to know about copyrighted music. The article focuses on YouTube, but here are four helpful pointers that can be applied to most online video productions.

1. Getting permission

Most of the videos we produce use tracks from online music libraries. Our regulars include the Audio Network, Music Bed, Pond5, and AudioJungle.

The prices vary from tens to thousands of pounds, and as with anything, the quality is also variable. The licenses are straightforward to purchase, though, and we take care of all the admin for our clients.

For this to be done most efficiently, it's useful to know how the final video will be used and the size of the audience. For example, licensing a track for a one-off video for online purposes will require a different license to a video series with multiple episodes. If there's a chance that it could be shown on TV, that also needs to be considered.

Other sources such as SoundCloud allow you to contact the musician directly to get permission. In those instances, written confirmation is required from the artist and any fees and royalty payments (if necessary) need to be clearly documented. We'll see why this is so important later in the post.

2. Music in live streaming video

The same rules apply to using music in live streaming video as static video content. If YouTube finds out you don't have a license, the live stream will be terminated.

It's less clear about other platforms such as Periscope and Facebook Live. David Lizerbram, a US attorney, offers this advice:

"When you hear a recording of a song, there are, most likely, two separate copyrights embodied in that song – the copyright in the musical composition (the words and music) and the copyright in the sound recording.

We all know that there are often many different versions of the same song, sometimes recorded by different artists at different times.

Well, each of those versions contains the same underlying musical composition (the “song,”) but each also comprises a unique sound recording.

If you’re using Periscope [or Facebook Live] for business purposes, be careful about using recorded music (such as a theme song for your Periscope streams) unless you have the proper licenses for both the song and the composition."

When you're using music in your live stream that isn't just ambient sound from where you are, it's better to get a license than risk facing a lawsuit.

3. What does fair use mean?

According to Tubular Labs, fair use "is a legal concept that allows the use of copyrighted material under certain conditions."

It's a legal gray area that is open to interpretation (read: dispute). It's often used by not-for-profit organisations who have more leniency than profit organisations that may use music without a license.

But that doesn't mean that any track can be used, non-profit or not. There are a number of factors that need to be met for it to be fair use:

  • The purpose — Educational, research, news or commentary is generally regarded as fair use.
  • The nature — Has the music been published before? Or will this be the first time it's played in public? When the music hasn't been heard before, that could be considered unfair to the artist if they haven't given their permission.
  • The amount — Obviously, taking 3-minutes of music for a 4-minute video is worse than a 15-second clip.
  • The value — Does your use of the music mean that the audience won't need/want to find the source material? If yes, that's not considered fair.
  • Transformative — Finally, if you're using the music in a new way such as a remix or a parody, that can potentially be seen as fair use.

Remember, all of these factors need to be met at least for it to be fair usage. If one of these isn't, then a license or artist permission is recommended.

4. TV, film, radio, video: the same rules apply

Some would question whether an online video is under the same rules as TV, radio, and film. The answer is yes, copyright laws still apply. YouTube, Vimeo, Facebook are all media outlets.

As Tubular Labs point out, "You are creating video content, posting it publicly and hoping an audience views it." Your intention is the same so there are rules that need to be adhered to.

If you are penalised for breaching copyright - for example, if YouTube has removed your video or the music track has been deliberately distorted - it's up to you to prove that you have permission to use the music (see point one). The video platform is merely in the middle between you and the copyright holder and bears no responsibility for what features in the content.

Whether rightly or wrongly, this gets us into the debate around what responsibilities these giant social networks have to their audiences. But that's a post for another day.

Artist + idea = Copyright owner. A simple formula

A simple formula to remember, albeit minus the legal wrangling in the middle.

As I say, most of these points have been included to manage expectations about what's possible when choosing music for your video. We can look after all the licenses and process of clearing copyrights. Ultimately, it will give you the peace of mind that your video is only going to attract the attention you want, not an expensive lawsuit.

Read the original Tubular Labs article - Top 10 Things You Need To Know About Using Copyrighted Music On YouTube.


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A basic guide to music copyright for online video

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