Multi-media digital projects often include music. Music can be the centerpiece of a project or serve merely to enhance the user experience. Whether you are using a pre-existing recording or making a live performance at Yale available to a wider audience online, you will be required to sort through a host of rights clearance issues. How these issues are resolved and the effort required to resolve them will depend on the source of the music you wish to use and the particular use you are considering. The process will also vary depending on whether the content will be made available through Yale’s website, a Yale channel hosted by a commercial internet service provider such as iTunes or YouTube, or distributed through some other means. All of these issues are discussed in detail below.
The music industry has changed a lot in the last 150 years, and it continues to evolve. Copyright law has periodically adjusted to balance competing interests. As a result, the laws governing music are complex. They define two distinct subjects of copyright protection:
1. A “musical work” is the composition created by the songwriter or composer and includes any accompanying lyrics. A musical work can be fixed (embodied in tangible form) in sheet music or on a phonorecord such as a CD or audio file stored on a hard drive. The songwriter or composer often assigns the copyright in a musical work to a publishing company, which grants licenses and collects royalties on his or her behalf.
2. A “sound recording” is the work that results from capturing a particular performance of a musical work. It can be embodied on a CD, a hard drive, or any other material object capable of reproducing sound. Sound recordings are created by the musicians and vocalists who perform the musical work and any producer who provides creative input, but these creators usually transfer their copyright to a record company, which handles any direct licensing of the sound recording.
Separate individuals can and often do own the rights to a sound recording and to the underlying musical composition performed on that recording. Adding to the complexity, a different set of exclusive rights attaches to each category of work:
1. An owner of the copyright in a musical work has the exclusive right to
- reproduce the work,
- create derivative works (including new arrangements),
- distribute copies (sale, rental/lease, or loan),
- publicly perform the work (live, radio, television, streaming, etc.), and
- publicly display the work (posting lyrics or sheet music on a website, for example).
2. An owner of the copyright in a sound recording has the exclusive right to
- reproduce the work (in exact copies; recordings made to sound alike do not infringe),
- create derivative works, such as a remix or a remaster,
- distribute copies (again: sale, rental/lease, or loan), and
- publicly perform the work by means of a digital audio transmission (such as satellite radio, Spotify, Pandora, or streaming from a website).
For any new multimedia digital project that makes use of music, you will need to consider which categories of work will be involved, who owns or administers the rights for each work, and which exclusive right the owner might assert against your particular use. Once the relevant copyright owners and rights have been identified, you must obtain a license from each owner or administrator for your use of each work.
In most cases, the need to obtain a license will not make your project prohibitively expensive. Music compositions are subject to a “compulsory license” scheme that prevents the owner from refusing to license the work or from charging more than a specific rate. Moreover, some works (for example, anything published before 1923) may be in the public domain, meaning that you no longer have to pay for their use. Finally, some uses for purposes including criticism, commentary, news reporting, and teaching are subject to the defense of “fair use” if certain factors apply. The Office of the General Counsel can help you answer the questions set forth above and determine whether any limitation on the copyright owner’s exclusive rights might apply to the use you are considering.
The foregoing licensing concepts are visually illustrated in this useful chart.
The following are a number of scenarios and rights clearance steps that may apply to your digital use of sound recordings and musical works.
1. Recording and Distributing Musical Works
To record a performance of a musical composition written by someone else and distribute it to the public by means of CDs, permanent digital downloads, or interactive streams, you will need a “mechanical license.” Under copyright law, mechanical rights in works that have already been distributed to the public are subject to a compulsory licensing scheme, whereby you may obtain a mechanical license from the rights holder or agent by paying a royalty of an amount specified by statute. Rights holders may, at their discretion, agree to lower royalty rates. Approximately 80% of music publishers process requests for mechanical licenses through the Harry Fox Agency, a single-source licensing service. The remaining music publishers manage their mechanical licenses in-house. The Harry Fox Agency provides extensive information regarding its offering of licenses as well as general information regarding the process for clearing rights to music on its website.
Summary: Recording/Distributing Music – Potential Rights Holders/Required Rights
If you wish to arrange for musicians to perform a musical work written by someone else, record that performance, and
- save the recording as an audio-file;
- burn CDs of the music for distribution; and/or
- make the recording available for downloads or interactive streaming (including podcast and ringtone)
Secure a mechanical license from the appropriate rights holder:
- Harry Fox Agency (if not granted directly from the music publisher or composer/lyricist), or
- Music Publisher (or in the absence of a music publisher, the compose/lyricist).
2. Combining Video or Images with Music
The right to create audiovisual works by combining musical works and/or sound recordings in timed relation with images or other visual works (“synchronization” rights) is not covered by the compulsory licensing scheme mentioned in the previous section. Thus, making and distributing copies of such audiovisual works requires a separate license which must be negotiated directly with the rights holder. Depending on the works involved and your intended use, one or more of the following licenses may be necessary: (i) a “synchronization” license; (ii) a “master use” license; or (iii) a “videogram” license. A synchronization license permits you to synchronize a musical work with an audiovisual work (like a motion picture or TV program or even background music on a website that contains images) and can be obtained from the publisher or composer/lyricist. A master use license permits you to combine a sound recording with an audiovisual work and must be obtained from the recording company who owns the rights in the sound recording. Finally, a videogram license covers licenses for programs contained in audiovisual devices that are primarily intended for sale to the public (such as DVDs, Blu-ray discs, and other home video devices). Assuming that you intend to distribute your web-based educational materials publicly, you may wish to act conservatively and obtain a videogram license from the music publisher and the record company.
Summary: Creating Video or Images with Music – Potential Rights Holders/Required Rights
If you wish to use a recording of music (including a music clip)
- in a video or film;
- in timed relation with images as background music on a website; and/or
- allow for downloads (including podcasts) or burning/distribution of DVDs of those multimedia works
Music Publisher (or in the absence of a music publisher, the composer/lyricist)
- secure a synchronization license for use of music with video/film/TV/images on a website;
- obtain a videogram license if you want the option of distributing your web-based educational materials publicly.
Record Company
- Request a master use license or a sample/clip license as appropriate for use of preexisting sound recordings with images.
3. Non-Interactive Streams
Streaming a performance of a musical work or a sound recording on the internet so that it can be heard in real time qualifies as a public performance for which you will need a license. Performance rights in musical works are typically granted by third party performance rights societies, which collect royalties on behalf of rights holders. You will need to determine which one or more of the three existing performance rights societies, ASCAP, BMI, and SESAC, administers the particular musical work you want to use and secure a “public performance license” from that society. Yale, like many other universities, has secured blanket licenses from all three performance rights societies. These blanket licenses typically cover live performances of copyrighted musical works on Yale’s campus, but the scope of rights under these licenses also extends to cover internet streaming to the extent that users access the stream through a Yale.edu website (through a Yale-owned or operated server) and in some instances, a Yale channel hosted by an internet company. For guidance on all other streaming applications, you may wish to consult with an intellectual property specialist in Yale’s Office of the General Counsel.
To complicate things further, in instances where you intend to provide a non-interactive stream of a preexisting sound recording, you will likely need to secure a license for the public performance (by a digital audio transmission) of a sound recording. For non-interactive streaming applications that meet certain conditions, a statutory licensing scheme applies, and rights may be cleared through SoundExchange, a nonprofit “collective management organization” that collects royalties on behalf of owners of the rights in sound recordings.
Summary: Non-Interactive Streams – Potential Rights Holders/Required Rights
If you wish to facilitate the streaming of music on a non-interactive basis (i.e., users are not able to select what they listen to), you will need to secure from the following rights holders the appropriate licenses:
Performance Rights Society (in the U.S.: ASCAP/BMI/SESAC)
- Obtain a public performance blanket license for streaming of live performances of copyrighted musical works on Yale’s campus, accessed through a yale.edu website and, in certain instances, a Yale-controlled web page hosted by a third party. Note that this does not cover music used in a dramatic context (“Grand Rights”)(see below).
Music Publisher (or in the absence of a music publisher, the composer/lyricist)
- Secure a blanket license for streaming a preexisting recording (when musical composition is not covered by a Performance Rights Society).
- Request Grand Rights for streaming of live musical performances in a dramatic context (e.g., musical or opera).
SoundExchange
- Obtain a blanket license for streaming a preexisting recording (if not granted directly by the record company).
4. Interactive Streams
The clearance required for interactive streams (where the user is able to select the music streamed to the user’s device) is the same as required for providing music as tethered downloads (where the selected music is copied onto the device for a temporary period). Unlike the process involved with regard to non-interactive streams, you will need to secure a mechanical license from the music publisher, composer, lyricist or the Harry Fox Agency (see Mechanical Rights discussion) in addition to coverage under a blanket license from one of the performance rights societies. Further, as there is no legislative mechanism for securing rights in preexisting recordings streamed on an interactive basis, such rights must typically be secured directly from the record label. Again, as clearing such rights is at times complicated, it might be useful to discuss your strategy with an intellectual property specialist in the Office of the General Counsel.
Summary: Interactive Streams – Potential Rights Holders/Required Rights
If you wish to facilitate the streaming of music on an interactive basis (i.e., users are able to select what they listen to) or to allow tethered downloads, you will need to secure from the following rights holders the appropriate licenses:
Music Publisher (or in the absence of a music publisher, the composer/lyricist)
- Request a mechanical license.
Record company
- Obtain a master use license when using a preexisting recording.
Performance Rights Society (in the U.S.: ASCAP/BMI/SESAC)
- Secure a public performance blanket license.
Harry Fox Agency (if not granted directly from the music publisher or composer/lyricist)
- Obtain a bulk license for interactive streams.