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Music Licensing in the Video Streaming Era - Fay Sharpe LLP

Music Licensing in the Video Streaming Era

Music Licensing in the Video Streaming Era

By: Alan Brandt and Jameson Tibbs

Prior to the unprecedented disruptions of 2020 many of us looked forward to going to a concert, play or recital. Although the pandemic took us out of our familiar venues, we quickly adapted to find new avenues for entertainment. As we adjust to doing less in public spaces and more in virtual spaces, streaming entertainment has become a booming business. However, whether your event is in person or virtual, sharing someone else’s music still requires that you obtain the appropriate music licenses or risk the consequences of copyright infringement.

To understand music licensing, it helps to understand the difference between musical works and sound recordings. A musical work consists of the notes that make up the melody and any accompanying lyrics. A sound recording is a recording of the performance of the musical work. Quite often, there will be separate owners for the musical work and the sound recording; each with a separate copyright. To complicate matters, each of these items carry performance and/or synchronization rights that you must acquire in order to use music in your video stream.

Performance licenses give permission to perform music in public. If you are broadcasting or streaming a live concert or event using music you will need a broadcast license. Performance Rights Organizations (PROs) such as the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) provide these on behalf of songwriters, for a fee of course.

Now that you have recorded the concert, you may be thinking about uploading the video for playback, or recording your live stream for later playback. To do this, in addition to the performance license, you also need a synchronization (sync) license. This license gives you permission to synchronize, or pair, a video with music and save it to play on demand. Unlike performance licenses, sync licenses must be obtained from the copyright holder(s) (e.g., music publisher) rather than the PRO.

The following chart is a quick outline of which licenses are required to use these rights for video streaming:

While all of this may seem daunting, the following steps will help you navigate the process.

Select your songs.

  1. Determine who holds the copyright to your selected songs (If you have obtained sheet music to perform the song the copyright holder is typically listed on the sheet music).
  2. Determine which PROs represent the copyright holders of your selected songs. In the United States most copyrighted songs are registered with ASCAP, BMI, GMR, or SESAC. You can determine which PRO(s) represent the copyright holder(s) of your selected song by searching for its title in each PRO’s repertoire:
  3. Select your live stream or video platform.
  4. Confirm/secure a performance license for the platform. If you are planning to live stream on YouTube, Facebook, or Instagram, and all of your songs are registered with ASCAP or BMI, you are currently covered under the platform’s performance rights agreements. On the other hand, if your songs are not registered with these specific PROs, you may have to check with the platform as to other PROs or secure performance licenses for those songs from the copyright holder(s) to live video stream/video post.

Failure to secure the proper licenses could result in steep civil and/or criminal penalties for copyright infringement. For example, civil penalties can range from actual profits lost as a result of the infringement to $150,000 per infringed song. On the other hand, copyright infringement can result in criminal penalties of up to $250,000 in fines per infringed song or up to five years in prison.  Setting up appropriate licenses at the start will help you avoid stiff penalties that may result from liability for copyright infringement. 

An attorney who is knowledgeable in this area can explain music licensing considerations to you and assist you in establishing sound practices based on your desired use of copyrighted music.