This blog raises two interesting issues: copyright in music and, my personal favourite, the occasional collision of law and reality. The question comes from the co-founder and CEO of a company with a music practice app that helps singers, dancers and musicians to learn and transcribe their favourite songs by slowing down the tempo, adjusting the pitch and repeating loops using their favourite tracks.
I was asked about the use of copyrighted music in YouTube videos promoting his company’s product and showing how the product is used (tutorials). The CEO assumes that he needs some kind of a license to use the music but also points out that he sees other videos from competitors, review sites and other commercial enterprises using popular music, which he doubts are officially licensed.
The short answer is yes, the CEO’s company does have to license the music and the fact that other commercial enterprises use popular music whether they have a license or not, while a good question, is ultimately irrelevant.
For a slightly longer answer let’s start with some basics. There are three copyrights in a typical recorded music file: copyright in the music/lyrics (which can be separate) and are often assigned to a music publisher; copyright in the performance, usually assigned by the performer to a recording company; and, copyright in the recording, also owned by the recording company. Now, here’s where it gets interesting. Each of those rights holders needs to be taken into account – though, as you might guess, that typically means no more than two licenses, one from the publisher (for music/lyrics) and one from the record company (for performance/recording).
To make things a bit more complicated, there are different kinds of licenses for different uses. The largest categories are performance/communication/publication (live public performance of the music or publicly playing the recording, broadcasting, narrowcasting, streaming, etc.); reproduction (making copies for public distribution of the music – sheet or electronic, or of the music and recording – vinyl, CD, digital files for download); and synchronization (a special type of reproduction that matches the recorded music to video). There are variations depending on the medium (analog, digital, online). There are obscure terms (mechanical rights, master rights, and neighbouring rights, for example), a multitude of collectives for administering various combinations of rights, uses and distribution media, and tariffs for some of those combinations that are set by the Copyright Board, while other combinations have to be directly negotiated with the copyright owners.
What’s a practical business response to this complexity that achieves your objective of using videos on YouTube to promote your company’s product and training users?
First, let’s hope that this is just about promoting and training (using portions of a handful of songs) – that you aren’t selling your software with song files included. Unless your software requires users to input their own song files (I assume these are song files they they’ve purchased) then your product is like “Rock Band” or “Guitar Hero” and you have a major licensing issue.
Second, I am going to assume that you want to use current popular music – that you choose not to use music you commissioned or purchased from a stock audio site or is public domain (older and off copyright, creative commons, etc.).
Third, you need to find the copyright owners (publisher and recording company) by searching any of the many online licensing resources (CMRRA, for example) or pulling it off the packaging (if a CD).
Now, negotiate – both with the publisher for the synchronization rights (to use the music with video) and with the recording company for the master use rights (to use the performance/recording). You will want to get specific permission to alter the song – your software not only reproduces the song, it manipulates it to make it easier to learn. (As a matter of interest, because you are specifically intending to host your videos on YouTube, YouTube reached an agreement with SOCAN earlier this year and YouTube now pays the music publishers’ collective for the public performance rights that are involved when your video is streamed.) No such luck with the record companies, but those rights will be included in your master use rights.
Finally – have a long list of acceptable song alternatives, so you have lots of bargaining power when negotiating (particularly effective when dealing with the independents). From my perspective, almost any song will do for your purpose.
Edwards PC, Creative Law is a boutique law firm provides legal services to Music, Film, Animation, TV, Digital Media, Game, Software and Publishing industry clients. For more information and blogs, please visit www.edwardslaw.ca
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards PC, Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.