For years, videographers have used music as a backdrop in their films, short videos, and documentaries. The law around music licensing is pretty clear: a license is required to use copyrighted music in a video. This has been a standard practice since the dawn of music recordings. Yet, throughout the video industry, we find music being used without a license. We need look no further than YouTube for examples. More than 1 billion unique visitors collectively watch more than 6 billion hours of YouTube videos every month. Over 300 million videos were flagged by Google’s Content ID system as containing unlicensed music. While it is true that many of those are merely personal videos showing everything from a child’s birthday party to family vacations, but from a legal perspective, they are all infringements. However, going after every individual using music in their video is impractical. For the one-time infringer, rather than sue them or ask for a take-down, several major media companies use the Content ID system to identify unlicensed music.
The Content ID program is a pretty simple concept, although the technology is quite sophisticated. Here is how it works from a user perspective: Members of the Content ID program submit the copyrighted works that they want the Content ID program to track. Each day, Google searches over 400 years worth of videos looking for any content that match the member’s submissions. When one is found, the member is notified. The member can then either ask for the work to be removed or instead, leave the content intact and run ads against it. The Content ID Program currently has 500 members, with the majority having decided that monetizing the infringements is better than banning the content. The program has been very successful and lucrative with over $1 billion dollars paid to program members since 2007.
The Content ID program works through a technology called Digital Fingerprinting. Every piece of media has identifying features that can be spotted by software and turned into a code that is unique to that piece of media. Digimarc, a company that specializes in digital watermarking and fingerprinting, explains the technology this way: Fingerprinting digital media works very much like fingerprinting people, relying on innate characteristics of the subject. Human fingerprints are characterized by patterns of loops or whorls; digital media fingerprints are comprised of clues such as audio waveforms and/or video characteristics. In both cases, a database of fingerprints must be maintained, against which to compare fingerprints “found in the field,” and technology is needed to rapidly match fingerprint “evidence” to fingerprints on file.” The database of fingerprints is generated when Content ID members upload content that they wish to track. Digital fingerprints help not just to identify media but also can help distinguish between versions. Imagine 50 pictures of the Eifel Tower from the same exact angle. A digital fingerprint will look at color, hues, contrast, as well as the people walking around, to create that unique fingerprint.
That’s great for users, who want to create mash-ups, karaoke versions of songs, add new voiceovers to popular movies, and any other types of user-generated content based on copyrighted material. According to YouTube’s Matthew Glotzbach, “Content ID has empowered creators to remix, curate and celebrate their favorite songs and videos resulting in videos that are both entertaining legions of fans and rewarding rights holders with revenue”.
As we have discussed many times on Art Law Journal, copyright is a strict liability law, meaning that despite the fact that the end user legitimately paid for a video that they had thought contained licensed music, become infringers when they copy the video for public display.
Use of unlicensed music is particularly prevalent in the event industry, which has become more video focused with many photographers adding videogrpahy to their repertoire.
Digital video cameras have become so inexpensive and with software making it so much easier to create quality videos, amateur videographers have been entering the market in mass, with price point far below that of the professional videographers. Being amateurs or part time photographers, they are often less knowledgeable about copyright laws leading to infringements. The amateur market also puts pressure on prices for higher-end photographers who are forced to lower prices to compete. Lower pricing equals lower profit margins. Videographers must reduce costs to offset the lower margins, so one expense that can end up on the chopping block is music licenses. Of course, this is a generalization. The vast majority of professional videographers are not infringers but given some videographers working today, a small percentage of infringement equates to a large problem.
Nonetheless, because the video industry is so competitive, some videographers will resort to using unlicensed music as a way to increase their margins.
For years, many videographers were operating on the notion that a videographer could use a copyrighted song since the video was only disseminated privately among family and friends. So if you were a videographer working a Bar-Mitzvah, the video would be shown for a short period at family gatherings, and then put in a drawer not be seen for the next 20 years. The same can be said of corporate event videos that were being shown only internally at corporate meetings.
The advent of social media has changed the landscape, which makes it easy to distributed those videos on YouTube, Facebook or linking them from Twitter, Tumblr or a dozen other sites. Even then, those videos would need to go viral to make the licensor aware that the unlicensed music was even being used. Today with Content ID, unlicensed music is easily found.
With so much reposting of images and video content throughout social media, it is not hard to understand why many people are confused as to what they are allowed to repost or upload and what they cannot. For the most part, the vast majority of reposts are copyright infringements. A copyright holder has the exclusive right to copy, distribute, publicly display or perform, and make derivatives of a work. When a person repost a copyrighted works, such as a photo, to social media, they are copying the photo in order to post it, by adding it to social media for everyone to see, they are both distributing and publicly displaying the photo. Creating derivative works are usually not the issue. A derivative work is a work based on or derived from one or more already existing works. Common Derivative works include translations, musical arrangements, or film versions of literary material or plays. For a derivative to be copyrightable, it must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work. From a music perspective, even a piano version of a favorite song is a derivative work.
When it comes to re-posting and re-using content on the internet, some may try to make a fair use argument, which would enable the poster to circumvent the alleged copyright infringement. But merely reusing a song in a video is not going to invoke fair use, especially fir professional videographers. They are not altering the songs to provide some criticism or commentary, for example. More importantly, they are gaining a commercial benefit at the expense of the copyright holder, who are obtaining a commercial advantage.
In many cases, social media infringements are merely tolerated by the copyright holders. After all, reposting can be seen as free advertising or public relations. Also, many of the uploaders are big fans of the person, product, artist or band and it is never a good idea to go after your biggest fans or in some cases, when it is being used for a cause your fans appreciate. Last year, Goldieblox, a toy manufacturer whose products help teach young girls about engineering and science, launched a video feature three girls who construct an elaborate Rube Goldberg machine out of their stereotypical girly toys, while an altered version of the Beastie Boys song “Girls” plays in the background. The Beastie Boys sued, causing an internet backlash.
Music Licensing Rights: How Does it Work?
While all these contradictions may make it difficult for people to understand infringements, it’s not something we expect to see from photographers / videographers; a group that constantly battles copyright infringement of their images. It’s a bit ironic that they would use music in their videos for which they don’t own music licensing rights. Admittedly, music licensing is a tricky thing to understand, mainly because there is more than copyright holder in any one song. As we’ve previously detailed here on Art Law Journal, songwriters, composers, and record labels all hold copyrights in songs, since each was instrumental to its production: the composer wrote the music, the songwriter wrote the lyrics, the performer recorded the music, and the record label paid for and produced the entire operation. For traditional licensing, such as covering a song in a band or playing the song on the radio licensing is not too difficult. Organizations such as ASCAP or BMI act as clearinghouses for sound recordings, providing one-stop-shops for sound recording licenses. ASCAP was formed to “assure that music creators are fairly compensated for the public performance of their works and that their rights are adequately protected.” ASCAP devised the “blanket license” system in which businesses such as restaurants, retail stores, and radio stations could play any song by an ASCAP signed artist for a fixed annual fee. Responding to high costs, BMI was created by radio broadcasters to provide radio broadcasters and other music users with an alternative source for music performance rights licenses. As it stands, the two compete with one another for licensing music rights to various businesses.
Unfortunately, ASCAP nor BMI can clear licenses for videos, also known as synchronization licenses. A synchronization license must be negotiated with the music publisher directly. The amount of the synch fee depends upon a number of factors: how the song is used, the stature of the song being used (old standard, current hit, new composition), the actual timing of the song as used in the video (45 seconds, one minute, two minutes), the term of the license, or even the territory in which the video will be distributed. So you can imagine that a videographer creating an event video for a small non-profit may have a different fee for using a video than if they were using it for a promo piece for a large corporation. Negotiating a license that covers all the various types of use can be difficult. Additionally, a separate license, known as a Master Use License, also needs to be obtained for the sound recording itself. As you can see, obtaining a copyright license extremely burdensome and expensive for a videographer, with many not even knowing where to begin.
Experimental Music Licensing Rights for Videographers
ASCAP has created a new kind of license for those in the business of transmitting sound recordings online. The ASCAP Experimental License Agreement for Non-Interactive Services provides a license for:
any site, service, device, product or application (e.g., widget) that transmits and/or provides access to transmissions of content comprising or containing music to “Users,” excluding transmissions of specific musical compositions at the request or direction of “Users” that are sixty (60) seconds or more in duration, via the Internet, wireless data network, telephone system (to the exclusion of music-on-hold services) or a similar transmission facility.
In a nutshell, videographers can purchase blanket, experimental licenses at an annual fee, which would give them access to ASCAP’s 90,000-song database, but they must not use any of those licensed songs for a period longer than 60 seconds per transmission. That means that a videographer must take care in ensuring that each song does not play for longer than 60 seconds in any one video. Additionally, the agreement requires the videographer to report each and every download to ASCAP.
That can be a problem, depending upon the environment in which the video is being hosted. Providing a video to a family for a Bar-Mitzvah or Sweet Sixteen may be put up on YouTube by the family or made available for download somewhere. How does that get tracked, especially if it is out of the videographers control. Who should pay ASCAP for all those downloads? It may be feasible for a corporate video but for event videos it would be a logistical nightmare.
Music Licensing Rights Through Other Channels
If a videographer prefers to skip the nuisance of reporting their downloads and tracking their song usage in their work, there are other channels that license songs on an individual basis. For example, both Song Freedom and The Music Bed offer popular music, covers of popular songs, and thematic music for purchase for a fee. It’s important to note that paying the fee for a license for a song only entitles you to use that song once, so the fees can rack up pretty quickly. Naturally, the more popular the artist, the higher the price tag – a Bob Dylan song currently retails on Song Freedom for $50.00 for a one-time use. Another option, You Tube’s Audio Library allows users to swap out the copyrighted music in their videos for something that sound similar but is legally available.
The result of all the complexity surrounding licensing video music creates an environment in which videographers use unlicensed music. But that is no excuse. Videography is not the only low margin industry with legal or regulatory complexities the industry must navigate. While the music licensing industry can certainly benefit from an overhaul, videographers still need to work under the current rules because in the end, the person who gets in trouble may be the customer who posts copyright infringing material to social media, even if they are unaware that the videographer is using unlicensed music. It’s unequivocally clear that staying within the guidelines of music licensing rights laws will keep both the videographer and the customer out of trouble. Though cumbersome, time-consuming, and expensive, it’ll cost you far more if they become the subject of a copyright infringement lawsuit.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.