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.

Is Music Compulsory License Needed for DVD of Film?

What if a filmmaker wants to record a cover of a song for use in a film and has no plans to put the cover song on a soundtrack CD or to make downloads available. Say the filmmaker hires his musician friends to record it, only for use in the film. I know the filmmaker would need a sync license. But would the filmmaker need a mechanical/compulsory license if the cover song were never sold on CD or downloads?
You are correct that a sync license should be negotiated between the filmmakers and the owners of the song. However, a compulsory mechanical license would not be needed. This is true, even if the filmmakers issued DVDs or downloads of the film. That's because a compulsory license is only granted on phonorecords -- copyright lingo for media that embodies only sounds (thereby excluding audio-visual recordings such as movies). A DVD or download of a film is not a phonorecord.

Wants to Use Music For Pitch Deck

Dear Rich: I have a 40 second animation that I would like to add music to. Its only purpose is as a lead in to a pitch deck for a media startup. It would have no "commercial use" per se. Can I use this much of a song for this purpose without it being considered infringement? Are there simple steps to take to avoid any taint of infringement? (I realize that it is highly unlikely that the artist would ever even know about its use, but I will be very protective of the IP in my company and don't want any appearance of infringement myself). Many versions of the song are on youtube, posted by individuals unrelated to the artist. We wish you good luck with your pitchdeck -- a short slide shows that summarizes a startup's business model (AIRBNB's pitchdeck is shown above). But avoiding any "taint of infringement" will be hard if you plan on syncing copyrighted music to an animation.
Sync licenses. To fully avoid liability, you would need a sync and master use license, which we believe will be difficult and expensive for you to obtain. (We discuss master use and sync licenses in a previous entry.) You're correct; the odds favor you. It's unlikely the music publisher that owns rights to the song  or the record label that owns rights to the sound recording will learn of your use (unless you're pitching a music-related startup). Those odds diminish if your animation/pitchdeck goes viral.
A "poor man's workaround"? You could pay for a corporate presentation performance license with BMI or ASCAP (whoever owns the rights). Though it won't satisfy the sync license requirement, it demonstrates your good will and may limit liability.
BTW Dept. (1) We don't agree that the music has no commercial use per se. Using music to excite investors seems like a commercial use to us. (2) The fact that others are posting the song at YouTube has no effect on your situation -- YouTube has its own methods of dealing with infringers.

Wants to Blu-Ray School Band Concerts

Dear Rich: I’d like to do multi-camera recordings of local high school band concerts and choir concerts.  I think I’m entering new territory by recording and possibly streaming the concerts. All proceeds from the selling of DVDs and Blu-ray discs go back to the school’s programs. I won’t be making any money off these endeavors. What kind of permissions do I need to secure? Do I need to contact the publisher for each piece that is performed? The correct legal answer is that yes, you would need to contact the publisher for each piece and get a sync license (we talk about it here), as well as permission from the school band performers and conductors (to avoid right of publicity claims). Since sync licenses are so difficult to obtain, we believe you can probably protect yourself just as well by getting a mechanical license instead of sync license. (Mechanicals are used only for audio recordings, syncs are for audiovisual recordings.) That would deflect any disgruntled publishers ... though we doubt any would want the negative publicity resulting from a brouhaha with a high school band.
Practically speaking ... If you are only selling the disks locally to members of the community, you can probably forego most of the permissions mentioned above. (It's what often happens when a tree falls in the intellectual property forest.) It may help to have something in writing (emails are fine) between you and the school that indicates you have their permission for your endeavor. If you intend to sell to a broader audience, you will probably need to get the permissions discussed above (and described in detail in the Getting Permission book.)

Old Band Videos: No Releases

Dear Rich: We have extensive old video footage of bands (a lot of it is over 15 years old) that I have been dubbing and want to try and do something with online and try and make a little cash. The bands were aware we were filming and had the option to purchase the masters, but chose not to. Could these be considered our art as we shot them and physically possess them. Most of the bands are now defunct and it would probably be hard to track them down for a release form, as most of our dealings were verbal agreements. If we start to do new ones, I would get a release from the band, but even if they signed it, would we (video crew people) be able to upload and charge for others to view and or purchase them?  Just thinking about the legal hoops you will have to go through has made us turn up the caffeine drip. (We've set out the legal rules below.) May we suggest another  strategy? Forget everything we're about to say and just do what you want. Unless one of the former band members later became a lawyer (and it happens) or is willing to hire an attorney, chances are likely your posted videos will become just more flotsam on the sea of low level infringements that are either drowning or enhancing popular culture (the grand jury is still out on that one). In any case, based on the odds, you're likely to survive intact. If there is an objection you may have to take down the video (not unlikely), or you may even have to deal with a lawyer (possible, but unlikely). However, what is extremely unlikely is that DOJ helicopters will land on your front lawn, forcing you to retreat to your safe room with a shotgun. (And can anyone tell us what's to become of the copyright of the fabulous MegaUpload theme song?)
Right, you had a question. You probably own the copyright in the videos because you shot them. The band (or their publishing company) probably owns the copyright in the songs (unless they are cover songs). If you want to include copyrighted music in a video, you need what's called a sync license from whoever owns the song publishing. Getting releases would help as you plan to make money from the band's trademarks and the members' individual personas. (BTW, whoever owns or possesses the masters doesn't matter too much; what usually matters the most is who possesses the legal rights.) BTW2, we've answered similar questions before (just type "sync license" into the "Search Dear Rich" box on the right) ...  just sayin'.

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.

Using Pop Songs in Videos

My daughter (age 16) and her friends regularly make films and incorporate songs. How hard is it to get releases from established artists like the Rolling Stones, Hoobestank, Katy Perry etc,, particularly if the films are already done? It would be relatively difficult to obtain permission to use recorded pop songs on your daughter’s videos. There are two copyrights at issue and each requires permission. As we've discussed before, you would need a sync right from the music publishers (owners of the composition) and what's sometimes called a master use license from the record companies (owners of the sound recordings). We doubt whether it would be worth the time to go about attempting to do this, and even if you could get in contact, the fees would likely be prohibitive.
A different approach. Let’s start with another question: What does your daughter plan to do with these videos? If she wants to share them with friends and have limited private showings, there probably wouldn’t be an issue especially because the copyright owners would never learn of the use. If she intends to place the videos on YouTube, one of three things could happen: (1) nothing, (2) the song owner would issue a DMCA notice, in which case the video would be removed by YouTube (unless you fought over the issue based on a fair use claim -- see below), or (3) YouTube would flag the video, send you an email stating that it thinks you're using unauthorized music and then run ads along with the video (which is what happened when the Dear Rich Staff posted a video with one of its favorite 80’s pop songs). By the way, the person you can thank for the latter alternative is probably Stephanie Lenz who posted a 29-second YouTube video of her kids dancing to “Let’s Go Crazy” by Prince and then, by challenging the DMCA notice -- because the label failed to consider fair use -- she made it more difficult for labels to send out DMCA notices.

DISCOUNT AT LIMELIGHT. The folks at Limelight, the mechanical licensing utility, are offering a 15% discount on mechanical licenses. If you want to check it out, the company has a special discount code: THANKSRICH15. The 15% discount is good through the end of October, 2011 (and no, FTC, we don't get compensated.)