INCORPORATING MUSIC INTO A VIDEO: PART 2

In conjunction with part one, this guide will help breakdown the process of determining what type of music license, if any, you may need to incorporate music into your top-quality content. As with part one, please keep in mind that intellectual property law is some of the most nuanced theory and practice in the United States legal framework. This guide is not an exhaustive resource and is not meant to be anything more than a free resource. The use of this resource does not create an attorney-client relationship, and this resource is not to be construed as legal advice. This resource should be viewed as a compilation of knowledge and may not be up to date. If you have specific questions about music, copyright, or licensing, please consider reaching out to the GreenRoom Team.

In part two of the guide, we will present a framework for deciding whether you can put a piece of music in your video, what to do if you discover that you accidentally have been using copyrighted materials, and a list of ways to find music for use in your videos in a legal manner.

1. Can I put this in my video?

a. Who Owns this Music?

i. I bought the music.

1. Does the Music sound just like another protected work?

a. Yes. If you had access to that other work, there is going to be a presumption that you borrowed from the other work and you could get in trouble.

b. No. Go nuts, you should probably protect it, but you can use the music (See the Work for Hire language in Section 3 Below).

ii. I got it from a free service.

1. Did you read the terms of use?

a. Look to see if you are allowed to reproduce musical work and or sound recording.

b. If you do not see an explicit grant to distribute both the sound recording and musical work avoid this.

c. If you do, feel free to use it. Print or save out the Terms of Use. If the grant is irrevocable then you can use it forever. If the grant is for a duration make sure to take down the video when that term expires.

iii. I got it from a website.

1. What type of Website?

a. SoundCloud:

i. Check the Terms of Service

1. Can you reproduce or use the Music?

Yes: You can use the music pursuant to those terms.

No: Contact the musician. Find out if the musician has a deal with a music label. If they are not, negotiate, a non- exclusive (or Exclusive) deal for the sound recording or musical works.

iv. I bought a physical or digital copy.

1. When you purchase a physical or digital copy you are buying the right to enjoy that musician's sound recording for your personal enjoyment. Anything outside of that sound without a license or some other use exception, you cannot use this for anything other than personal enjoyment.

v. I purchased a license.

1. Great! Now make sure that you understand the following

a. What does this license allow me to do?

b. How long is the license for?

c. How many times can I use the license?

d. Do I have to renew the license?

vi. I am only sampling the music.

1. Sampling music without permission is infringement. Sony, Ed Sheeran, and many others have lost millions of dollars from not understanding this.

vii. I am going to sing the song myself.

1. Without the rights to the musical works, you are still infringing on copyrighted materials. Sorry, but just because you sing it doesn't mean you can use it.

viii. It is fair use.

Sorry, it probably is not, but check out part one section five to evaluate the analysis.

2. I have been using copyrighted materials, what should I do?

a. If you have made a mistake and used protected works without permission, you need to take action. Given the amount of content on YouTube, you may not have been caught or you might have just received a warning. Either way, you need to take steps to reduce your risk and liability. In the practical application you have four choices: 1) secure a license for protected material, 2) remove the protected material, 3) maintain your stance that it is fair use, or 4) openly infringe.

i. Securing a music license is the safest method. To secure a license you should the right to license the protected work and obtain a fee schedule. There is a wide range of services that can make sure you avoid any problems. At the bottom of this guide are a few potential licensing companies. You should consider having a lawyer review the terms and conditions of any licensing contract.

ii. Removing protected content is a way to ensure that you do not expose yourself to any additional liability. If you have already received a notice of infringement or have been sued, this will not necessarily stop the legal consequences but will be a step in the right direction.

iii. Fair Use may absolve you from liability, but you may incur thousands of dollars in legal fees and experience many sleepless nights before you are vindicated. When applying the fair use doctrine, it is much more difficult than with other artistic expressions.

iv. You can always openly infringe and be subject to all the consequences associated with that choice. Please be aware that there are a whole host of potential consequences ranging from forfeiture of profits to hefty civil penalties. You may get away with it for a while but remember that bots are out their scanning videos as we speak.

3. Can I commission my own music?

a. You can absolutely commission your own work but if you do you need to make sure that you protect that work! Some general suggestions include having a contract that states that the music, recording and associated materials are all works made for hire. You can work out with the musician the exact terms, but it is important for you to get what you pay for!

4. Where can I license music?

a. List Licensing Resources.

i. https://www.bmi.com/

ii. https://www.ascap.com/music-users

b. Subscription-based packages.

i. https://www.musicbed.com/

ii. https://www.audionetwork.com/

iii. https://www.marmosetmusic.com/

iv. https://musicvine.com/

v. https://www.epidemicsound.com/

This has been a two-part guide to using music, the legal way, in a YouTube video. Once again, the use of this resource does not create an attorney-client relationship, and this resource is not to be construed as legal advice. This resource should be viewed as a compilation of knowledge and may not be up to date. If you have specific questions about music, copyright, or licensing, please consider reaching out to the GreenRoom Team.