You’ve crafted the perfect creative idea. You’ve spent hours outlining, storyboarding and talking to the other professionals and artists you’ll need to bring this idea to reality. You even know exactly what you want the work to sound like — and you’ve found the perfect music. There’s just one problem: Can you legally use that music?
Music is “perhaps the most restricted and licensed” area of copyright law, according to Washington State University. If you’re not familiar with its requirements, you can easily end up exposing yourself and your team to liability for a copyright violation. Here’s an overview of copyright law as it applies to a range of content creators: from directors and agencies to students and hobbyists. Since we cannot cover every nuance of copyright law in one article, however, we strongly recommend that you consult an attorney with questions that relate directly to your project.
What is Copyright?
Copyright is an intellectual property right that gives creators the ability to control certain uses of a creative work they have “fixed in a tangible medium,” according to the Digital Media Law Project. A “tangible medium” would include not only items like ink and paper, but also computer files saved to a disk.
(As Jonathan Bailey at Plagiarism Today notes, questions about what “fixed” and “tangible” mean are very complex in a digital world, and courts don’t always agree on them. For creatives seeking to use music, however, the vast majority of works under consideration will clearly be “fixed” in some manner.)
We talk about “copyright” as though it’s one thing, but it’s easier to think about copyright as a bundle of closely-related rights. Chris Robley sorts these into four basic categories:
- The right to reproduce the work
- The right to distribute (i.e. sell) the work
- The right to perform the work
- The right to make derivatives of the work, like arrangements or samples
The owner of the copyright also has the right to grant permission to others to reproduce, distribute, perform and/or make derivatives of the work. This grant of permission is known as a “license.” It’s also used as a verb: “We need to license this song if we’re going to put it in the ad.”
In addition, copyright law distinguishes between copyrights in the “musical composition” and copyrights in the “sound recording,” commonly known as the “master.” The U.S. Copyright Office defines these two terms as follows:
- A musical composition consists of music, including any accompanying words, and is normally registered as a work of performing arts. The author of a musical composition is generally the composer and the lyricist, if any. A musical composition may be in the form of a notated copy (e.g., sheet music) or in the form of a phonorecord (e.g., cassette tape, LP or CD).
- A sound recording results from the fixation of a series of musical, spoken or other sounds. The author of a sound recording is the performer (or performers) whose performance is fixed, or the record producer who processes the sounds and fixes them in the final recording, or both.
For creatives seeking a license, the distinction between a musical composition and a sound recording matters.
Which License Do You Need?
You’ve found the perfect music, and you need a license to use it. But which license do you need — and where do you get it?
Music is one of the most complex forms of expression when it comes to copyright law, and licensing rules reflect this complexity. To start your search for a license, ask these two questions:
- What is it about the music that we want? For instance, do you want to use this particular arrangement of notes and lyrics (the composition), or do you want the iconic sound of a specific performer’s interpretation of those notes and lyrics (the recording)? The answer can help point you toward the right license.
- What do we want to do with the music? For example, imagine you’ve decided you want to license a particular composition so that an emerging artist can do a cover for your branded video campaign. You’ll need a license that covers use of the composition. If you wanted to make an arrangement of the piece, you’d also need license that cover the composition — but you’d need a slightly different license than the one used for covers.
SoundReef breaks down the myriad types of licenses for sound recordings used today:
- Sync License. Commonly used by creatives seeking to pair music and video, a sync license provides permission to re-record a sound recording into another work, like a video. An ad agency seeking to use Houston’s “I Will Always Love You” as the background track for a commercial would need a sync license.
- Performance License. Used when someone seeks permission to play a sound recording, usually at an event like a party or business. An ad agency that wanted to play Houston’s “I Will Always Love You” over the loudspeakers at a campaign reveal event would seek a performance license.
- Master Recording License. This license gives its holder permission to use a specific sound recording. For instance, a company that wanted to include the recording of Whitney Houston singing “I Will Always Love You” on a “20 Top Hits of the 90s” album would likely contact the recording’s copyright holder, Arista Records, for a master recording license.
- Mechanical License. Used for companies that make physical copies of the recording. For instance, the company that burns CDs of Houston’s “I Will Always Love You” would need a mechanical license to do so.
Sync licenses are the most commonly used licenses for content creators who want to pair music with their visual works. The costs for a sync license can vary profoundly — from a few hundred dollars to half a million or more.
Considerations that affect the cost of a sync license include:
- How will the recording be used? Is it background music, a theme song, an intro/outro?
- Where will the recording be played? Is the finished work a TV commercial? An indie film? Where will people see it?
- What type of media is the finished piece? Is it a small art film or a Hollywood blockbuster?
- How many people will see it? For instance, is the finished spot an ad for a local company, or is it a Super Bowl spot?
- How well-known is the songwriter or performer? Typically, the bigger the name, the bigger the price tag.
Some creatives consider reducing the cost of a well-known song by seeking a license to cover the work, rather than to use an iconic sound recording. A license for a cover falls under “composition” because the interest is in the particular set of notes, rhythms and lyrics that constitute the song, not in a particular version of it.
Arrangements may also require both a composition and performance license, notes attorney Serona Elton, especially if you intend to use a performance of an arrangement as music within a video work.
As attorney Nancy Prager notes, however, it’s important to ensure that you are in fact licensing the composition and performance rights together. Companies like BMI, ASCAP, and SESAC deal with music composition licenses, including complex ones that include performance rights. At SonicBids, Jamie Davis-Ponce provides a guide on how to determine who owns both music composition and sound recording rights.
3 Myths People Have About Copyright and Music Use
Because music copyright is a complex subject, myths abound. Here are three of the biggest misconceptions that content creators face when they’re trying to understand how to include music in their video works.
“If I only use a few seconds, I don’t need a license.”
Sampling has become a huge part of modern music — and an equally huge part of the modern music business. Samples can cost several thousand dollars apiece, according to New Media Rights, which can tempt creators into thinking that the sample they want might be “too small” to merit chasing a license. In fact, ReverbNation notes, you not only need a license for a sample, but you may need both a license for the sound recording and for the underlying musical composition.
What if the sample is really short? Some courts have held that certain samples may be too small to warrant a license — a concept known as “de minimis” sampling, according to Mark H. Wittow and Eliza Hall. However, not all US courts agree on how small a “de minimis” sample has to be, and it’s better to be safe than sorry.
“If I remix it, I don’t need a license.”
Remixes and mashups have become popular ways to find new artistry in existing works. But they can also invoke legal questions that standard cover songs do not. That’s because a remix or mashup can fall under the category of a “derivative” work, according to attorney Christiane Kinney. And the making of derivative works is one of the rights in the bundle that belongs to the copyright holder.
The further a remix or mashup gets from the original, the less likely it is to be recognized as a cover, Kinney notes. “Definitely in the remix world if you’re just adding, let’s say a drum groove underneath a song where the melody and the lyrics and the chord progressions are all really tight and pretty close-knit to the original, you’re not really going to have much issue” identifying the remix as a cover, Kinney tells Get In Media. When considering licenses for a remix or mashup, look at how far the new work deviates from the original — and talk to a lawyer if you feel lost in the gray area.
“If it’s more than __ years old, I don’t need a license.”
Copyright isn’t immortal. After some time, both musical compositions and sound recordings fall into the public domain, meaning they are no longer protected by copyright and are free to use.
However, calculating when a piece has public domain status isn’t easy. It depends on a long list of factors, including when the composition or recording was made, whether it was a work for hire, when or whether that copyright was registered and/or renewed with the U.S. Copyright Office, and whether the original was first fixed in tangible form in the US or elsewhere.
To evaluate a piece’s copyright status, tools like this flowchart from law firm Brown & Michaels can help.
ICYMI: If you are a musician or composer looking for information on how to protect your art, we have a guide to copyright law just for you.