Copyright and Your Band: Using Someone Else’s Music in Your YouTube Video (And What to Do if Someone Uses Yours)

YoutubeCopyright_600After reading previous Copyright and Your Band posts, you’ve learned all about song ownership, recordings, and who gets paid for public performances. But where do sites like YouTube fit in?

Syncing music to visuals adds a layer of complexity: if you want to sync up someone else’s song to images/video, you need a special license called a sync license. And if you want to use an existing recording, you will need permission from both the owner of the recording and of the song.

So how did countless throngs of amateur videographers create nearly 5 million YouTube videos featuring Psy’s hit song “Gangnam Style”? And more importantly, did Psy get any money from the videos? Let’s talk about how to use someone else’s music in your video – and what you can do if someone uses yours.

How to Legally Use Someone Else’s Music In Your YouTube Video

Serious about following the law and respecting copyright? If you want to upload a video to YouTube that features music you don’t own, here are the steps to follow:

  1. Go to to ASCAP’s Ace Search or BMI’s Repertoire Search
  2. Look up the owner/publisher of the song you want to record
  3. Contact them directly to request a sync license

When you speak to the song owner/publisher, you will be negotiating a license. Be prepared to discuss information such as:

  • How the song will be used
  • Who/how many people are likely to see the video
  • What visuals will accompany the music
  • How many copies of the video will be made
  • How many times the video will be shown
  • Whether you prefer an upfront payment, royalties, or some combination
  • If/how credit will be given to the songwriter

Note: If you want to use someone else’s recording of a song in your video, you will also need to contact the owner of the recording (most likely a record company or the artist who recorded it), and request a master license.

What to Do When Someone Uploads a YouTube Video FeaturingYour Music

Very few YouTube users (or any other video posting site) go through the rigors of sync and master use licensing – so what can you do when someone rips your best single and syncs it to a video of their cat? YouTube provides a lot of tools for copyright owners to monitor, protect, and monetize their content.

YouTube’s solution for detecting infringing videos is its content ID system. This system allows copyright owners like you to identify videos that contain your copyrighted music and visuals. Once identified, you can track, block, or monetize the infringing videos.

In the YouTube Copyright Center, there are a variety of links to help you and your band manage your copyrighted music.  They also have some amusing Muppet-inspired videos to help explain copyright.

So if you find an unauthorized cat video on YouTube featuring your music, you basically have three options:

  1. Track the viewers. YouTube lets you track who has watched the infringing video. This data can help you sell merchandise, tickets, recordings, or raise money for your next album. Maybe you have an unknown fan club in some other part of the country (or the world)! Information is power, and tracking views can help you get to know your audience better.
  2. Take it down. If someone puts your recording on YouTube without your permission, you can request that YouTube take it offline or remove the soundtrack. The Digital Millenium Copyright Act forces companies like YouTube to promptly remove infringing content when notified by copyright owners, which means the video will be removed quickly (no questions asked), and the infringer is notified to contact you if he or she thinks the takedown notice was unwarranted.
  3. Monetize! If you want money from YouTube videos featuring your music, you canmonetize the video by instructing YouTube to include advertisements. If you choose this option, you will be sent money for each view. Keep in mind that many people will skip the video if the ads are too long, so don’t get greedy by requesting a two-minute ad for a 15-second video – if people don’t watch, you don’t get paid!

Why Not to Take Down an Infringing Video

Monetizing videos or simply tracking views can sometimes be a better solution than taking down all videos that include your music. Videos and songs that go viral are often helped along by a lot of amateur copycats, and the more people who hear your music, the greater your potential pool of buyers for your next recording or concert. You won’t get recognition until people hear your music, so as long as you get credit it may be worth giving up some control in favor of more exposure.

In the case of Psy and “Gangnam Style,” it’s obvious that the vast majority of YouTube users who uploaded videos featuring his song did not acquire a sync license. Instead, Psy receives money for each view and benefits from the exposure of the viral craze, resulting in a boost to other sources of revenue such as paying gigs.

Ultimately, it’s up to you to decide what kind of action to take if your music is being used in an unauthorized video. Regardless of what you choose, the most important thing is to be aware of the process and the options available to you so that you can make smart decisions for your music career.

Copyright and Your Band: Cover Songs (Part Two)

Record Store PictureDISCLAIMER: This post is not intended as legal advice, for specific information pertaining to your situation consult an attorney who specializes in entertainment law.

Copyright often remains in effect long after the death of a song’s writers: U.S. copyright protection currently lasts 70 years beyond the life of the writer. Most songs you will wish to perform and record are still copyrighted. Songs protected by copyright earn money for their owners (even after the actual writer has died.) To perform, record, or alter copyrighted songs you and your band will need to seek licenses from the song owners, and/or the publishers and agencies that administer their copyrights.

Mechanical Licenses from Harry Fox Agency

Fortunately for you, the mechanical rights to many songs are managed by the Harry Fox Agency this organization allows you to pay for the mechanical licenses you need to make recordings. Limited quantity licenses, for fewer than 2,500 physical copies or 10,000 interactive streams, can be purchased through Harry Fox Agency’s online mechanical licensing system called Songfile. There is a processing fee of $14-$16 for each song licensed through Songfile, and you will need to know how long your version of the song will be, what media you are using (CD’s, ringtones, or interactive streams), how many copies you plan to make, and basic information about the original song. Use the Songfile Public Search database to find out if Harry Fox can give you a license, and watch the Songfile demonstration video to get started. For larger quantities (more than 2,500 CD’s) you will need to set up an HFA License Account. You can then register use their eMechanical online license request system.

Negotiating Rates

If Harry Fox Agency is unable to grant you a mechanical license to record a cover song, perhaps because they only represent some of the song’s owners, then you will need to contact the copyright owner or publisher directly. You will also need to contact the owner/publisher to negotiate anything other than the statutory rate; Harry Fox Agency can only grant licenses using the statutory mechanical rate. In order to find out who owns and publishes songs try searching databases from the PRO’s and Harry Fox Agency (see research links below.)

Medleys

Medleys or songs with samples can be expensive to record. For example, if you decided to record a Christmas medley including excerpts from 3 different songs, then you would have to pay 9.1¢ to each of the 3 songowners for the medley if you license it through Harry Fox Agency. So instead of paying 9.1¢ for a 5-minute song you will end up paying 27.3¢! Although Harry Fox Agency is unable to negotiate lower rates, by speaking with song owners/publishers directly you may be able to persuade them to negotiate a lower licensing rate in proportion to the use of their song in the medley.

Sampling

If you sample other artists’ recordings you will need to obtain a master use license directly from the owner of the soundrecording, this is in addition to the mechanical license you will obtain from the songowner/publisher. Unlike mechanical licenses, there are no statutory rates for master use licenses. The owners of sound recordings have the right to prevent you from using their recording at all, or to charge you high upfront fees and/or royalties to sample their recording. Get your master use license before adding samples into your final recording for more leverage when negotiating.

Making Changes to Cover Songs

To put your own mark on a cover song you may wish to change things such as the lyrics. As with negotiating a lower mechanical licensing rate, you will need to contact the song owner/publisher directly in order to make alterations to the song. Changing aspects such as tempo and key do not normally require permission, but for changes to the melody or lyrics consult the song’s owner/publisher; be prepared to pay a fee for the privilege and to submit your intended changes for approval prior to recording.

Copyright and Your Band: Cover Songs (Part One)

Record Store Picture

DISCLAIMER: This post is not intended as legal advice, for specific information pertaining to your situation consult an attorney who specializes in entertainment law.

The holidays are upon us and with the plethora of Christmas albums released every year this is a great time to talk about the copyrights involved when you and your band choose cover songs. Almost everyone, from the guys at an open mic night to superstars like The Beatles, perform and record cover songs. Bands sometimes even change the lyrics to suit their personal styles. Covering songs by other writers expands your rep and gives audiences something to hum along

with, but performing, recording, and altering songs written by someone else requires copyright licensing, familiarly known as getting permission in exchange for money.

Copyright often remains in effect long after the death of a song’s writers: U.S. copyright protection currently lasts 70 years beyond the life of the writer. Most songs you will wish to perform and record are still copyrighted. Songs protected by copyright earn money for their owners (even after the actual writer has died.) To perform, record, or alter copyrighted songs you and your band will need to seek licenses from the song owners, and/or the publishers and agencies that administer their copyrights.

Performing Cover Songs Live

Suppose you and your band decide to perform a holiday show including Irving Berlin’s classic song “White Christmas.” Although Berlin died in 1989, the Irving Berlin Music Company owns and administers the rights to his music. Because “White Christmas” is still copyrighted someone needs to have a performance license for the cover song to be performed.

Lucky for you performance licenses are usually obtained by the performance venue. Restaurants, clubs, concert halls, and stadiums purchase blanket licenses from Performing Rights Organizations (PRO’s) including ASCAP, BMI, and SESAC to allow them to perform songs written by PRO members. For more on PRO’s and performance licensing see Copyright and Your Band: PRO’s collect money! The performance license ensures that songwriters, lyricists, and publishers get paid when their songs are performed. If a venue tells you not to perform cover songs its probably because they do not have a performance license.

Make sure you or the venue have a performance license from the PRO’s or do not perform cover songs (there could be legal consequences if you don’t have a license!) If your venue does not have a performance license you can obtain one directly from the PRO that represents the song/songwriter you want

to perform. Use ASCAP’s Ace Search to find out who most songwriters are affiliated with (even many who do not belong to ASCAP), then contact the appropriate PRO to request a license. Visit ASCAPBMI, and SESAC for details on purchasing a license to perform music by their members. You only need to purchase a performance license if the venue does not already have one.

Recording Covers

Congrats, your holiday show was a hit! Now you want to record your first Christmas Album for your adoring fans (including lots of cover songs of course!). In order to record any song you need to get a mechanical license; this gives you permission to mechanically (or electronically) reproduce and distribute copies of a song.

After an initial recording is made and publicly distributed, U.S. Copyright law allows anyone to record any song for a statutory rate . Basically you can record a John Lennon song as long as it has already been recorded once, and the fee will be the same for any song you choose from Madonna to Elvis to someone you’ve never heard of. However, if you discover a long lost Lennon song that has never been recorded before, then you will need to negotiate permission and a fee directly with the song’s owners. The rule of thumb is, if you’ve heard it on a CD, LP, or iTunes, then you can cover it and pay the statutory rate.

The current statutory rate to record a song (highest fee legally allowed in the U.S. for a previously recorded song) is 9.1¢ for each copy made of a song that is 5 minutes or less. Longer songs have a rate of 1.75¢ per minute for each copy. Harry Fox has a complete explanation of statutory rates.

If you record a 10-song album of cover songs and each song is 5 minutes or less, then you would have to pay 91¢ for every copy of the album that you make (10*$0.091=$0.91). If you order 1000 copies of the album it will cost you $910 in mechanical licenses. When you consider alternate methods of distributing your recording the rates vary: interactive steams (such as Spotify) enjoy the statutory rate of 1¢ per copy, and ringtones are 24¢ per copy.

(End of Part One. Stay Tuned for Part Two.)