Music to Our Ears
Learn the risks and best practices associated with the increasing use of music on digital and social media platforms.
If brands want to use music on digital and social media, they need to understand that there are two types of copyrights for music.
- Song or Composition: includes music, chord progression, arrangement, and lyrics, created by a composer and lyricist. An example would be the original rendition of “White Christmas” by Irving Berlin. The copyright is jointly owned by the composer and lyricist, then assigned to a publisher (e.g., Universal Music Publishing Group, Warner/Chappell, or Sony/ATV Music Publishing).
- Recording or Master: an arrangement of particular sounds done in a particular storage media (e.g., CD, MP3, tape, or vinyl). It is one artist’s interpretation of a song at one point in time. Examples would be all of the versions of “White Christmas” by different artists over the years, among them Elvis Presley, Bing Crosby, and Andy Williams, each singing the lyrics differently and making adjustments to the style of the music. The rights to a master are usually owned by a label such as Universal Music Group, Sony Music, or Warner Music Group.
Every song is bundled with rights and permissions, which include:
- The right to reproduce (i.e., make a copy)
- The right to do creative derivative works (arranging/rearranging/orchestrating/changing the words)
- The right to distribute (authorize the first recording, followed by a “Compulsory License” that allows others the right to record it)
- The right to display
- The right to publicly perform
It should be noted that public performance of a song does not necessarily mean that admission is charged, only that transmission to the public is for simultaneous or sequential listening. Publishers almost always assign these rights to a performing rights organization (PRO) such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), or SESAC. These organizations grant blanket public performance licenses, which allow the paying user unlimited access to songs under the license for a specific period of time. A public performance license is required when songs are played in public, such as at a club, restaurant, concert, or on the radio.
For digital performances, PRO licenses are required with an additional “sound recording license” from a separate entity called SoundExchange. Two pieces of legislation — the Digital Performance Right in Sound Recordings Act and the Digital Millennium Copyright Act — created separate performance rights in sound recordings for digital and satellite transmissions, including internet transmissions.
Public Domain
The basic length of a copyright in music written after January 1, 1978 is the life of the author plus 70 years (for joint authors, it’s the life of the older author plus 70 years).
One way to avoid paying fees for the rights to a song is for brands to use songs in the public domain. For the U.S., songs are in the public domain if they were first published in the U.S. before 1923.
Licenses to Get
Depending on how the music is to be used, the following are the licenses brands may need:
Synchronization license: This license is necessary for the synch of a song with visual images. Negotiated directly with the publisher, it’s an agreement between a music user and the owner of a copyrighted composition (song) that grants permission to release the song in a video format, such as YouTube videos and other online video platforms.
Mechanical license: This is an agreement between a music user and the owner of a copyrighted composition (song) that grants permission to release the song in an audio-only format, such as interactive audio streams and digital downloads.
Master recording license: Obtained from the label, this is an agreement between a music user and the owner of a copyrighted audio recording that grants permission to use the recording. Brands need to get this license even if a small sample of the audio recording is used. Master rights holders maintain total control, enabling them to set any fee or even reject the request for the license.
Most favored nations (MFN): Rather than a license, this is a standard clause in music licensing contracts that brands need to be aware of. It ensures parity between the rights holders, stipulating that whatever amount a brand agrees to pay the publisher for the song will be the same amount paid to the master rights holder. If the publisher ends up charging more than the master owner, brands must increase the fee paid to the master owner so there are equal amounts on both sides.
In seeking the rights to a song, brands need to be familiar with the terminology of filing a quote request and the key license terms.
The Music Modernization Act
The Music Modernization Act creates a single Mechanical Licensing Collective funded by digital music services to grant those services blanket mechanical licenses to reproduce musical compositions on digital phonorecords. It provides a publicly accessible database for song ownership information, and it requires digital radio services to pay master rights sound recording performance royalties for sound recordings prior to 1972.
Platform Terms
When advertising on social media, digital platforms have their own unique set of legal standards that brands need to take into consideration.
Social/Digital Use Cases
The following are some legal examples concerning the use of music in digital environments.
As a general rule, brands are advised to check the terms of use for every platform and ensure that they have the necessary music licenses.
Livestreams: Facebook and Instagram livestreams only allow under a minute of copyrighted music, but live music is permitted.
Facebook and Instagram: Music in stories and traditional live music performances (e.g., filming an artist or band performing live) are permitted. The greater the number of full-length recorded tracks in a video, the more likely usage may be limited. Shorter clips of music are recommended. There should always be a visual component to your video, while recorded audio should not be the primary purpose of the video.
TikTok: Businesses and some organizations, such as the Washington Post’s TikTok account, cannot use music for use in commercial content anymore.
Twitch: Some music content may not be used in streams or in videos on demand (VODs), including DJ sets, karaoke performances, lip synch performances, visual music depictions, and cover song performances.
Music stickers: Instagram allows for pieces of music to be added to Instagram Stories or posts, but not for commercial use without a license.
Brand playlists: Brands should make sure there is no implied endorsement of any one particular artist.
“Stock” music and user-generated music: Check the license terms to make sure the sync and master license are in place.
Source
"Music to Our Ears." Robert H. Newman, Co-Chair, Privacy, Security and Data Innovations at Loeb & Loeb LLP; Daniel Latimer, In-House Counsel at American Honda Motor Co., Inc. ANA 1-Day Conference, Law and Public Policy, 9/14/20.