If You Want to Use Someone Else’s Music, Get a License

/ Nov 5, 2013

MIMGuest

By Larry Iser

So you want to make a music video? Or a film, TV show, commercial, trade sizzle, or any other audio-visual work that incorporates popular music? You need to license that music. Yes, there are a couple of very narrow exceptions to this rule, which in most cases won’t apply to you, so I’ll say it again: You need to license the music.

Back in 1787, when the United States Constitution was adopted, the framers recognized that if authors (“authors” include songwriters) didn’t have the ability to earn a living from their “writings” (“writings” include songs), our fledging country would never progress artistically. Article I, Section 8 of the Constitution kept it simple, giving Congress the right “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Over time, Congress did just that, passing copyright legislation that protected authors from the unauthorized use of their writings and requiring those who want to “copy” or reproduce all or part of the writings to obtain permission. Most often, that permission takes the form of a license. With respect to music, the license required to use a musical composition in an audio-visual work is called a “synchronization license,” commonly known in the business as a “synch license.” And if you’re not doing your own cover but want to use someone else’s recording of that musical composition, a second license is needed: a “master use” license.

Of course, there was no way for the framers to anticipate the extraordinary technological innovations to follow, including such useful devices as computers, communications platforms such as the internet, and as of 2013, the #1 destination for experiencing the output of songwriters, YouTube.

Fullscreen is a so-called multi-channel network that operates and aggregates thousands of YouTube channels, with content that is comprised mainly of cover song music videos. Founded by former YouTube exec George Strompolos, Fullscreen claims to be “the largest YouTube network of video creators from around the world,”  boasting on its website to 200 million subscribers across 15,000 YouTube channels with more than 2.5 billion unique views each month. In August, 2013, Fullscreen was sued for copyright infringement by a large number of music publishing companies for allegedly failing to obtain licenses from the publishers before broadcasting the music videos to 2.5 billion people per month. Among the songs allegedly infringed are hits by Justin Bieber, Kanye West, Ke$ha, Lady Gaga, and Katy Perry. The lawsuit claims that Fullscreen both produces its own music videos and also distributes, markets, and promotes music videos made by others.

According to the lawsuit, the music in the videos produced and distributed by Fullscreen wasn’t licensed. Apparently at the time the lawsuit was filed, the plaintiff music publishers had been negotiating with Fullscreen for such a license; it was reported that Fullscreen had already reached an agreement with Universal Music Group that provides for a 50/50 split of the advertising revenue derived from the YouTube music videos. It was suggested in the press that lawsuit was filed due to a breakdown in similar licensing negotiations between Fullscreen and the other publishers.

There’s no grey here. Either Fullscreen gets the licensing it needs, or the Court is going to enjoin Fullscreen from broadcasting the videos and allow a jury to figure out the damages, which could be very substantial: The Copyright Act provides for up to $150,000 per song per video in statutory damages alone.

Nor will Fullscreen be able to rely on the fair use doctrine. To constitute a fair use, the video must be using the musical composition for a limited and “transformative” purpose, such as to comment upon, criticize, or parody the copyrighted work itself. It isn’t a fair use to take an entire song and sing it in a funny way, or to use the lyrics in a clever way, or to poke fun, comment upon, criticize, or parody anything other than the song itself. Because virtually all of Fullscreen’s videos merely feature a performance of the song itself, fair use simply doesn’t apply.

If any of this seems unfair to you or your business, keep in mind that songwriting is a business, too.  Our founding fathers understood that if creative types could not control the proceeds of their creativity, they’d have to do something else to put food on the table. So this all makes sense. If you want to use someone else’s music, get a license.

larryiserLarry Iser is the managing partner of Kinsella Weitzman Iser Kump & Aldisert in Santa Monica, California, where he specializes in intellectual property concerns in the entertainment business.

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  • copyrightmaven

    Interesting piece. You seem to know quite a bit about fair use.

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