Will YouTube Ruin My Album Release? Mechanical v. Sync License

Dear Rich: If I have the licensing for songs to record and distribute and want to use the same recording as part of a video, do I need to pay for additional licenses? I’m afraid that YouTube will ruin my album release video project. 

The mechanical license you purchased for recording and distributing the songs (as MP3s or on vinyl or CDs) differs from the license needed for using your version of the song in a video (referred to as a "sync license"). Sync licenses are negotiated directly with the copyright holder. Unfortunately, no collective like HFA provides blanket sync licensing (although various sites may negotiate sync licenses for a fee). 

Typically, you're on the defensive with YouTube. Even if you acquire the proper licenses, an initial objection may be prompted by Content ID or the Copyright Match Tool. At that point, you'll need to provide evidence of your license, or in the case of a takedown, a DMCA counter-notice. (A song owner can block, track or monetize an infringing video.) Even though covers may be harder to detect (because they don't match the digital fingerprint of the original version), there are methods for locating them, for example, text searching software that detects titles or lyrics. In some cases, YouTube can facilitate a revenue-sharing arrangement with the song owner. Bottom line: Because most song infringements on YouTube are monetized, not taken down, you may want to forego the sync license and wait and see if a copyright claim is made against your video.

Musician Looking For YouTube Royalties

Dear Rich: I signed a publishing deal with a major publisher several years ago. I had established a relationship with a popular Youtube celebrity who began using my music heavily in her posts. I made the publisher aware of this use and asked them to handle monetization. My music was streamed in the background of these posts tens of millions of times, and so far according to my publisher, my total Youtube royalties are less than a dollar. The publisher stated that it would have been the responsibility of the publisher's rep, a person who no longer works for them, to make sure that Youtube had what they needed to pay me for my music. The publisher also stated that it would have been my distributor’s responsibility, although I don’t have a distribution agreement. What can I do?
Your options are limited. There are three types of income generated when someone uses your music as the soundtrack for a YouTube video (referred to as user-generated content, or UGC) and each type of revenue has its own rules.

• The performance royalty is paid by the songwriter's performing rights society (either BMI, ASCAP, SESAC or SOCAN). These payments are small (one songwriter reported receiving $80 for nine million video views). To get paid you have to belong to a performing rights society and have registered your song titles. The society's payment is based on data from YouTube's Content ID system (more on that, later).
• The mechanical-sync payment is made to the owner of the song (usually the songwriter or a music publisher). It's a payment for the right to use the song on the video's soundtrack. Your publisher may have made a confidential blanket arrangement with YouTube and your payment, if any, would be determined by your publishing agreement. Songwriters who have not signed with a publisher can affiliate with a company that collects these payments such as Songtrust, Audiam, or CDBaby Pro Publishing.
• The sound recording royalty is paid to the owner of the master recording of the song (usually a label, producer, or the artist). When your music is included on user-generated content -- for example, your song is used as the soundtrack for a dancing puppies video -- you are entitled to a cut of the revenue from advertising on the dancing puppies' page. However, you are entitled to the revenue only if YouTube has notice that your recording is used on that video. The notice is usually supplied by YouTube's Content ID system.

The Content ID system makes an audio fingerprint of your music and scans YouTube. If it finds a match, the music owner can shut the video down, or monetize it for ad revenue. Music labels have partnered with YouTube to bring their music into Content ID. Unsigned musicians, if they qualify for Content ID, can apply directly to YouTube to be part of the program. Distributors like CDBaby will manage the Content ID collections for you.
What to do? Assuming you own the master recording, you'll have a hard time obtaining sound recording royalties. YouTube pays ad revenue after it receives notice and apparently somebody failed to register your music with Content ID. You should have received performance royalties if you registered your compositions with BMI, ASCAP, etc. Your publishing agreement, if you can decipher it, should spell out your publisher's obligation. Speaking to a lawyer would be your best bet, but unfortunately, considering what musicians earn on YouTube, hiring a lawyer might not be worth it.

Can I Embed YouTube Video at For-Profit Site?

Judge Posner
Seventh Circuit

Dear Rich: Is it safe to embed YouTube videos in courses that are developed for-profit? The YouTube terms and service page indicates that the embed code they offer is designed to make sharing/embedding possible regardless of use. We noticed that your email was from Canada so we must caveat our answer by stating that our answer is based on U.S. copyright law. Though similar, the two nations differ in terms of legal precedent, fair use, and educational uses, among other things. The short answer is that embedding is probably not copyright infringement but may be a violation of YouTube's terms of service.
What about copyright law? Based on a 2012 decision by Judge Richard Posner of the Seventh Circuit Court of Appeals, it is not copyright infringement to use the embed code furnished by a video web service such as YouTube. Or put in plain English, embedding a video doesn't violate federal law. The logic is that the end user is not producing or distributing the video, and the copyright owner, by providing the embed code, is encouraging viewers to stream the video via their sites. As for the copyright owner's right to control the performance of videos, Judge Posner held that the argument was promising but currently the law was too ambiguous (considering that the data stream originated from another site) to determine whether embedding was a violation of the performance right.
What about YouTube's end user license? The YouTube Terms of Service do provide limitations on what can be done (and can't be done) with its embedding service. If you've agreed to the these terms of services, then there are certain prohibited uses. For example, you can't embed and then sell access to the embedded video. You can't provide advertising, sponsorships, or promotions on top of or within the embedded video. And --  and here's where it gets pretty confusing -- You can't sell, advertise, sponsor or promote any products or services on any page of an ad-enabled blog or website containing the YouTube embed code unless "other material not obtained from YouTube appears on the same page and is of sufficient value to be the basis for such sales." We take that to mean it's okay to sell something on the same page as the embedded video although it seems like an ambiguous, confusing standard and one that allows YouTube, not the user, to determine if a violation has occurred.

Can We Use YouTube Clips for EAP Nonprofit?

Dear Rich: I work for a non-profit Employee Assistance Program and we provide short-term therapeutic counseling for workplaces. As part of our services, we have a small training department consisting of two trainers and a catalog of approximately sixty trainings we developed on a variety of topics. Some of these have small clips, two-to-five minutes, of TV shows, movies or maybe a YouTube clip. With the TV and movies, we never use clips that could potentially spoil the plot or give away a surprise, etc. Nothing that would take away someone's desire to see the show or movie. We're glad you don't give away the plots but unfortunately that won't make any difference for copyright purposes. (Neither will the fact that you're a nonprofit.) If you're using other people's copyrighted content without permission, and it's not excused as a fair use, you're liable for infringement. As always, if it's unlikely that the copyright owners will learn of the use, then the risk to the EAP diminishes accordingly.
What about fair use? Your use sounds transformative -- you're commenting on the clip -- so that would be helpful for a fair use defense. On the other hand, the clips are much longer than what's usually excused (under a minute). Look at the four factors and see what you think, or better yet, check with a lawyer if that's possible. Remember, claiming this defense is not enough to stop a lawsuit. If the other side disagrees with you, only a judge or arbitrator can determine whether it's a fair use.

Wants to Reproduce Movie Trailer in Kiosk

Dear Rich: What if all I will reproduce is a public movie trailer that I would just reproduce just the same way it was originally released by the studios but in an offline kiosk? Reproducing a movie trailer at an interactive kiosk is an  infringement of the movie studio's copyright. The questions you need to consider are (1) whether the studios will find out about your use (Are you installing your kiosk on Sunset Boulevard?) and (2) if they do find out, will they hassle you.
Won't my use help the movie? A trailer is an ad for a movie and in the competitive environment of movie sales, it's often in the studio's best interest to overlook infringements in order to get the word out. However, if the trailer is being used as a means to sell something other than tickets to the movie -- for example, the trailers are running as a sort of wallpaper in a clothing store -- the studios may choose not to overlook the use. Also, if you are installing kiosks at places such as malls or gas stations, the property owners may ask for indemnification --  meaning that you would have to pay to defend them against the studios, should they choose to sue.
How come people get away with it at You Tube? You may wonder, "If the studios aren't pursuing the thousands of people already copying movie trailers at You Tube and other sites, why do I need to be concerned?"  Keep in mind that the studios have already made peace with You Tube --  and the result is Content ID that sniffs out infringements and either blocks or monetizes them.

Can I Post Music on Vine or Instagram Videos?

Dear Rich: I am the administrator for my church's social media accounts. I would like to post short six-second Vine and fifteen-second Instagram videos of our musicians performing hymns and other copyrighted music. Should I look into buying a copyright license for these videos, or would it be considered fair use because of the short length of the videos? As for buying a license, forget about it (and see our previous entry to understand the futility of that effort). The music companies have made the task of obtaining a sync license impossible for mere mortals.
The good news: As far as we can tell neither Vine or Instagram has a copyright filter similar to the one at YouTube (though that may evolve one of these days). So, it doesn't appear that Vine or Instagram will flag your use of unlicensed material. Chances are also good that a six to fifteen second music clip will be excused as a fair use particularly if you're not infringing the sound recording copyright --  that is, you're not using a pre-recorded song as a soundtrack for your video. Finally, music publishers and/or record companies may not want to pursue this rabbit hole of potential infringement. So, although it may possibly be an infringement, we don't think you'll run into legal problems in the near future.

Can We Make Cover Song Video?

Dear Rich: I'm in a band, that's just starting. We write songs, which we intend to release soon. We were wondering, though, if it would be alright to make some videos of us singing other artist's songs first, and post them online (not to be sold, though), using them as a sort of advertisement. I've tried researching that, and it seems that technically it's illegal, but we don't understand why so many people have done that very thing, and later been rewarded with recording contracts, (i.e. Justin Bieber, Cody Simpson, Christina Grimmie and Greyson Chance). If it's illegal, why does it seem to work for so many people?  First, we're happy you formed a band. It's a great way to make friends (and enemies) and it teaches young people a lot about important stuff like personal hygiene. We're not familiar with most of the artists you mentioned but that's probably why they're successful. In any case, you're correct that it is a violation of copyright law to make a cover-song video without permission. People do it and "get away with it" because websites such as YouTube have worked out arrangements with many song owners. Instead of requiring that the video be taken down, the song owners allow the video to stay up as long as advertisements are displayed and/or run in conjunction with the video. The song owner keeps the money from the ad revenue. In addition, you may find it difficult to embed your cover video outside of YouTube, or as you'll see if you click our cover song above, you'll get a message forcing you to watch the video on YouTube thereby enabling the ads (we love what happens at :54 seconds). We wrote about this phenomenon (sometimes triggered by a system called Content ID) in a previous blog entry. You can also learn more about cover songs and videos by reading this article at CDBaby.

Using YouTube in Book

Dear Rich: (1) Can I use the name "YouTube" in my ebook? (2) Can I reference YouTube links in my ebook? (3) Also, could the word YouTube be used in the title? (1) Yes, (2) yes, and (3) yes (as long as you don't imply YouTube is associated with or endorsing your book).

How Do I Word a Copyright Disclaimer for YouTube?

Dear Rich: I've seen a lot of different statements posted by people at YouTube so they won't get sued over copyright infringement. What is the best thing to write to prevent getting sued? These statements -- known in legal parlance as "disclaimers" --  are intended to prevent (or at least limit) copyright infringement claims. The most common of the half-million disclaimers used at YouTube is apparently "No Copyright Intended" which -- despite its ambiguous meaning -- is about as effective as going 90 MPH in your car with a sign that says "No Speeding Intended." Other disclaimers state that the user is claiming fair use. Unfortunately, claiming fair use doesn't mean that the work qualifies as a fair use. Only a court can determine that. In truth, we don't believe that there is really any disclaimer (scroll to bottom of page) that would be effective in preventing a lawsuit if your video infringes someone else's work.
So what do you say? Knowing that disclaimers won't prevent a lawsuit, you might be able to limit damages in a lawsuit by stating something to the effect of "No copyright is claimed in [content copied] and to the extent that material may appear to be infringed, I assert that such alleged infringement is permissible under fair use principles in U.S. copyright laws. If you believe material has been used in an unauthorized manner, please contact the poster." Don't expect this to do much --  most copyright owners will bypass this and have it removed under a DMCA notice -- but it may set a more sympathetic tone for you as a defendant if you find yourself responding to a lawsuit.

What's the "Right" Way to Post Cover Songs on YouTube?

Dear Rich: My band had a nice show at the Freight and Salvage and we'd like to post some YouTube video but all but one of our tunes is a cover song. What's the current custom on that score on YouTube? I've peeked at some stuff on the web about this, but am not getting very clear answers. The whole YouTube ethic seems to be post and ask forgiveness later, but I'd like to just do it right, if there is a "right" way. Remember the good old days when the "right" way to promote a band was to bribe a DJ or the person at Tower Records who reported to Billboard? But what happens now that radio programmers are out of the picture and record stores owners are MIA. Did digital music wreck the whole payola thing? Or is it more of a crowd-sourcing activity now -- like you bribe folks for YouTube views? Or you pay to get "Likes" at Facebook?
Right, you had a question. The short answer is to give up on doing it the "right" way. The proper way to post a video of a cover tune is to obtain a 'sync license' from the owner of the song -- usually a music publisher that owns songwriting rights. The chances of you, as an unsigned artist, accomplishing that task would be about as likely as obtaining John Lennon's tooth. (BTW, a book on celebrity teeth -- Keith Richards call your dentist -- is apparently available in Canada.). It's for that reason everyone including an aspiring Justin Bieber, apparently posts covers without permission. (Note, that all may change if new punishments are adopted.)
We're talking about covers, here ... YouTube does have a means of locating videos that use major label recordings -- for example if you use a Prince song as a soundtrack for your child's dance routine. YouTube seems to possess digital fingerprints for pre-recorded pop tunes because when we posted a video of our commute to Nolo and included a track by everybody's favorite, Rockwell, we received a notice within hours of posting. YouTube had found unauthorized material on our video (and as punishment was going to run ads over our video). YouTube reserves the right to take down our video but in the interim, the company apparently divides the advertising revenue with the rightsholders -- music publishers and record companies. We're pretty sure YouTube doesn't have similar method for detecting cover versions -- that is, when someone else performs a Prince song. Of course, these unauthorized uses could still be located via old-fashioned text searches or spot scanning of videos. And songwriters who discover covers of their material can still issue a DMCA notice to YouTube (although you don't hear much about that practice these days). So, in summary, the 'post now, deal with it later' approach is the default mechanism for covers.
What about Limelight and Harry Fox? Harry Fox and Limelight are companies that provide a means of obtaining a compulsory license -- the right to release CDs and MP3s of cover songs. These licenses do not apply to audio-visual works.