Companies use music for the instant vitality, emotion, and specific mood that music can inject into a promotion, presentation, or a room. Companies are often uncertain about how they may legally use music, which uses require a license, and the best sources of music for business use.
I addressed these issues at a recent webinar, “Using Music at Work”, sponsored by the Copyright Clearance Center. Here are 25 key points I shared about using music in your business:
1. Common business uses of music that might require a license include
- using music in an advertisement or promotion,
- offering music at a live, public event (e.g., convention, trade show), and
- incorporating music into training materials or into a business presentation.
2. Music licensing can be complicated. Here is an easy-to-grasp general take-away. If your company is sharing music externally (on the internet – in an advertisement – at a conference), the company’s use of that music likely requires a license. Even if the company is sharing the music only within the organization, the use of that music might still require a license.
3. While music licensing is not rocket science, it is also not intuitive. As an initial step in determining which music licenses you need, you must understand that a song differs from a sound recording; and that each has its own separate copyright.
4. Typically – but not always – the song and the sound recording have different owners. The song copyright is owned by the songwriter or by the songwriter's music publishing company. The sound recording copyright is owned by the record label that released the recording. The same song can have multiple sound recordings with different ownership of each sound recording.
MUSIC LICENSES MOST COMMONLY SOUGHT FOR BUSINESS USE
(Public Performance, Synch, and Master Use Licenses)
5. Public performances of songs almost always require a public performance license. License requirements for the public performance of sound recordings are limited to public performances rendered over the internet or by other digital means.
6. If you play a song in a retail store, in a restaurant, at a conference, or other public venue, those are public performances (as opposed to private performances) of the song and a license is required. It does not matter whether the public performance is rendered by a live band, a CD, a DJ, or someone’s smartphone.
7. Most song public performance licenses are issued by performing rights organizations (PROs). The PROs for songs in the United States are ASCAP, BMI, and SESAC – which have been around since before the 1940s - and Global Music Rights, a relatively new PRO established in 2013.
8. Each PRO controls a different catalog of songs. Typically, the PRO issues blanket licenses that allow licensees to perform any song in the catalog of that PRO. Public performance licenses in songs are fairly easy to obtain. ASCAP, BMI, and SESAC offer websites where you can obtain and pay for the public performance license you need.
9. Using music in a video, advertisement, or any audio-visual presentation requires a synchronization (or synch) license from the copyright owner of the song and a master use license from the copyright owner of the sound recording.
10. There is not a specific name for every different manner in which a company might use music. For example, there is no specific name for incorporating music into your training materials. Licensing for training and business presentations is more similar to licensing for a video presentation since you need direct permission from the song and sound recording copyright owners
COMPARISON OF MUSIC SOURCES FOR AUDIO-VISUAL, TRAINING, AND BUSINESS PRESENTATION PURPOSES
(Popular Music, Production Music, Indie Music, Creative Commons Music)
11. As noted above, public performance licensing is relatively easy. In contrast, acquiring music to incorporate into company promotions, videos and presentations can be more difficult. When evaluating where and how to obtain music for this purpose, a company should consider ease-of-licensing, cost, suitability for the company needs; and potential risks.
Benefits and Advantages to Using Popular Music
12. Popular music (i.e., music by well-known artists, music listed on Billboard charts) is the most difficult to acquire. Its benefits include immediate recognizability and conveyance of the mood or period you wish to evoke.
13. Using popular music requires contacting and directly negotiating with the music publisher for a synch license in the song and with the record label for a master use license in the sound recording. These owners are likely major music industry companies and it is not uncommon for permission requests to a major music company to elicit no response.
14. License fees for popular music are frequently in the tens of thousands of dollars, depending on the popularity of the music and how it will be featured or used in the audio-visual production (e.g., background, foreground, over the credits).
Benefits and Advantages to Using Production Music
15. Production music companies are in business solely to license you content so they often make the acquisition process very easy by allowing you to preview, purchase a license, and download music online. The production company provides both the synch license and the master use license. The cost for some production music can be as low as $30. Most uses are usually less than $1,000.
16. Using production music carries minimal risk. Nevertheless, you should read the license agreement to be certain that your specific use is permissible. For example, some production music companies do not allow their music to be used in political advertisements.
17. As a downside, while production music can be very well-done music, it is not going to be music that was on the Billboard Top 100 and that people immediately recognize.
Benefits and Advantages to Using Indie Music
18. Music by independent musicians (i.e., musicians whose music is not distributed by a major record group and, as a result, might have narrower distribution and not be as well-known) is likely to be significantly less expensive than popular music and somewhat more expensive than production music. While it probably lacks the broad immediate recognition of music that was a Billboard Top 100 hit, it might be recognizable within a particular niche - depending on the indie musician’s fan base.
19. While a company will want all its music licensing agreements to include appropriate representations, warranties, and indemnifications, this is especially important when obtaining music from indie musicians. If indie musicians lack the funds and resources to document the ownership rights in original music on which they collaborate, ownership and rights questions can eventually result in a dispute among the indie musicians. And your company does not want to find itself in the middle of any such intra-band dispute.
Benefits and Advantages to Using Creative Commons Music
20. Creative Commons music is free to use, and easy to find and download on the internet. It is unlikely to be immediately recognizable music. Using any creative commons material is higher risk because it comes with no representations, warranties, or indemnifications.
Benefits and Advantages to Using Commissioned Music
21. You can commission original music. The expense depends on the commercial stature of the musician providing the music. It’s a longer acquisition process because you must negotiate the transaction and then wait for the composition of the songs and the creation of the sound recordings.
22. While the music is not immediately recognizable (because it is brand new music), it can be tailored to the company’s needs. If you have a well-drafted agreement for creation and acquisition of the original music, there should be minimal risk.
WHAT HAPPENS IF A COMPANY FAILS TO LICENSE MUSIC? AND WHAT ABOUT FAIR USE?
23. Using music in your business without obtaining the required license might result in a DMCA take-down notice for materials posted online. There is also the possibility of a cease and desist letter with or without a demand for a license fee payment for both online and offline use. In a worst case scenario, the legal consequences of infringing music will generate a copyright infringement lawsuit against the company.
24. Fair use is subjective – and just because you believe a use is a fair use doesn’t mean the rights owner will agree with you. The situations where fair use applies to music for company use are probably not as broad as some people believe. In my view, it is a rare for a company’s use of music in an advertisement or promotion to qualify as a fair use. There might be situations or circumstances of using music in training materials that result in credible fair use arguments.
25. Like many legal issues, the answers to music licensing requirements and rights clearance questions are sometimes unclear. Sometimes, the right approach depends on your tolerance for risk. Here are questions to ask yourself when conducting a risk assessment over music use – or any other creative material.