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.

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. 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 one of the guide, we will discuss the principles of copyright; licenses; how the two interact with music; some of the more commonly used, sharing-focused licenses under the Creative Commons; and the principle of fair use.

1. What is a Copyright?

   1. Definition: Copyright is a bundle of rights held by an author, developer, or composer of an original creative work.

      1. These rights include the exclusive right to:

         1. Make copies

         2. Authorize others to make copies

         3. Make derivative works

         4. Sell the works

         5. Display the works

         6. Perform the works

         7. Protect the works through legal action

      2. What can be protected by copyright? Original works of authorship.

         1. Sound Recordings:

            1. Example: Queen performing “Killer Queen”

         2. Musical Arrangements:

            1. Example: The musical notes and words surrounding “Killer Queen”

      3. Audiovisual Works:

         1. Example: Your YouTube Videos!

      4. Literary Works (Computer Software is included in this category!):

         1. Examples: Harry Potter and the Goblet of Fire, Fortnite, Microsoft Word, Quick Books.

      5. Graphic Works:

         1. Example: The Campbell Soup cans by Andy Warhol

      6. Compilations and Derivative Works:

         1. Examples of Derivative Works: New versions of a computer program, an adaptation of a dramatic work, a sculpture based upon a drawing, a movie based upon a play or a novel.

         2. Examples of Compilations: A list of the best short stories of 2019, a book of the greatest news photos, a website containing text, photos, and graphics

   2. How long is a copyright good for?

      1. If the copyright belongs to the original author, it lasts for the life of the author plus 70 years

      2. If the work is anonymous, pseudonymous, or a work for hire, either 95 years from the date of publication or 120 years from the date of creation, whichever is shortest.

   3. What cannot be protected by copyright?

      1. Ideas: You can only copyright things that have been created. Do you have a hit song in your head that is going hit? Put it on paper and protect it.

      2. Vague concepts:

         1. Example

            1. You cannot copyright an entire genre.

            2. You cannot copyright a space opera.

            3. You cannot copyright a movie about two people going through space.

            4. You can copyright a full written screen play about science fiction space opera about a Wookie and a scoundrel going through space to save the rebellion.

   4. How do I get Copyright Protections?

      1. All original forms of authorship are automatically granted copyright protection the moment that the work is created and fixed in a tangible medium. However, to enforce a claim to your copyrighted work, it must be registered with the copyright office.

      2. Go to the copyright office website: https://www.copyright.gov

      3. Hire an Intellectual Property Attorney

   5. Statutory Resources

      1. Copyright Act of 1909, https://www.copyright.gov/history/1909act.pdf

      2. Copyright Act of 1976, https://www.copyright.gov/title17/92appa.pdf

      3. DMCA, https://www.copyright.gov/legislation/dmca.pdf

2. What is a License?

   1. Definition:

      1. A license is a grant from the owner of some property made to a non-owner to use the owner’s property for some purpose.

      2. The owner of property can grant a license to anyone for any purpose. This can be as simple as a license for a non-owner to come on to the owner’s land, into the owner’s house, or to use the owner’s car. Licenses also apply to intangible property such as IP.

3. Copyrights and Licensing in Music

   1. Definition

      1. Musical Works: These protect songs and compositions

         1. Example: The written lyrics and/or musical notes

         2. Note: This only protects the actual notes and any accompanying lyrics. A recording of those notes and lyrics being played, in most cases, requires a separate registration.

      2. Sound Recordings: These protect the specific manner in which the music is arranged, recorded, and edited on the recording.

         1. Example: A recording of Queen edited by their music label

         2. Note: This is the converse note of Musical Works above. The recording only protects the recording of the artist’s rendition of the notes and lyrics in a musical work. In most cases, each must be filed separately.

   2. Types of Music Licenses (Definitions from BMI & ASCAP) (https://www.bmi.com/licensing/entry/types_of_copyrights https://www.ascap.com/help/ascap-licensing)

      1. The exclusive right of the copyright owner, granted by the U.S. Copyright Law, to authorize the performance or transmission of the work in public.

         1. Example: You want your corporate event to be able to play a particular song. Before you can play that song, you need a license.

      2. Public Performance License

         1. A company issues licenses on behalf of the copyright owner or agent granting the right to perform the work in or transmit the work to, the public.

         2. Example: You have a cover band or want to hire a cover band and want them to sing a particular cover. Before the band can do that, someone needs to secure the rights to perform the copyrighted music.

      3. Reproduction Right

         1. The exclusive right of the copyright owner, granted by the Copyright Act, to authorize the reproduction of a musical work as in a record, cassette or CD.

      4. Mechanical License

         1. A company issues licenses on behalf of the copyright owner or his agent, usually to a record company, granting the record company the right to reproduce and distribute a specific composition at an agreed upon fee per unit manufactured and sold.

      5. Synchronization License

         1. Music Publishers issue licenses as copyright owner or his agent, usually to a producer, granting the right to synchronize the musical composition in timed relation with audio-visual images on film or videotape.

            1. A YouTuber wants to sync a Hans Zimmer track to your cool zombie killing montage.

      6. Digital Performance Right in Sound Recordings

         1. Sound Exchange along with Record Companies license the exclusive rights on behalf of copyright owners in a sound recording (which is separate from the copyright in the underlying musical works that may be represented) under U.S. Copyright Law to authorize many digital transmissions (e.g., Internet streaming).

            1. Example: You create a streaming service and want to bring Taylor Swift to the masses.

4. Creative Commons

   1. The Creative Commons is an organization that attempts to balance the rights of creators and users alike. As they say Creative Commons provides “The combination of our tools and our users is a vast and growing digital commons, a pool of content that can be copied, distributed, edited, remixed, and built upon, all within the boundaries of copyright law.”

   2. Types of Licenses Provided by Creative Commons (https://creativecommons.org/licenses)

      1. Attribution(CC BY): This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.

      2. Attribution-Share Alike(CC BY-SA): This license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This license is often compared to “copyleft” free and open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use. This is the license used by Wikipedia, and is recommended for materials that would benefit from incorporating content from Wikipedia and similarly licensed projects.

      3. Attribution-No Derivs (CC BY-ND) This license lets others reuse the work for any purpose, including commercially; however, it cannot be shared with others in adapted form, and credit must be provided to you.

      4. Attribution-Non-Commercial (CC BY-NC) This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

      5. Attribution-Non-Commercial-Share Alike (CC BY-NC-SA) This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.

      6. Attribution-Non-Commercial-NoDerivs (CC BY-NC-ND) This license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.

      7. All Rights Granted/No Rights Reserved (CC0) This is a type of license that takes a work and puts it into the public domain. A licensor that implements this license waives any and all rights to the work, which means that anyone may freely build upon, enhance, and reuse the work for any purpose. Unlike the above CC licenses, CC0 opts out of copyright protection and grants the public full use of the work.

5. Fair Use

   1. What is Fair Use:

      1. Fair use is a doctrine that allows the unauthorized use of copyrighted materials if used for purposes such as criticism, commentary, or parody. Many people receive a copyright “strike”, take down request or other legal notice and want to instantly respond, “screw you, this is fair use." Unfortunately, the analysis is not that simple. Fair use’s basis was carved out by the Copyright Act of 1976. This carve-out allows any person the use of copyrighted materials in connection with 1) comment or criticism of the work, 2) news reporting, 3) teaching purposes or 4) scholarship.

      2. The use of these copyrighted materials still infringes on the rights of the copyright owner but "fair use", as an affirmative defense, limits the infringer from any liability. An affirmative defense is raised exclusively at trial. Fair use has some unique attributes in that, under the DMCA, copyright holders need to do a “subjective good faith” analysis or they could be held liable for damages resulting from copyright misrepresentation.

   2. To determine whether or not an unauthorized copy or use is protected by the doctrine of fair use they must evaluate the balancing of four factors. (remember that this is a subject factor test and is made on a case by case basis.)

      1. The purpose and character of the use

      2. This factor is to determine whether the use is transformative or adds value in its own right. The courts will look to see if you added new expression, meaning, value, information, insights, or understanding.

         1. Example: H3H3 Productions analysis and critique of another YouTuber’s content.

      3. Nature of the copyrighted work

         1. This factor looks at the actual work. Courts have been more inclined to find fair use when it encourages the free spread of ideas.

            1. Example: Fair use is more often found when it comes to news, scientific, or scholarly works rather than a motion picture.

      4. The amount of the work and the substantiality of the portion used in relation to the work as a whole.

         1. This factor looks at the amount of the work you are using. This is not limited to only time but also can be extended to the message.

            1. Example: Using 2 minutes of a 90-minute movie or using 1 still image from a movie (Do it for the memes)

      5. The effect on the potential or actual value of the copyrighted work

         1. This factor requires the Judge to establish what the potential effects a ruling of Fair Use would have on the current and future value of the Copyrighted work.

         2. Example: Using movie posters in a book about the director. This use does not limit the sale of movie posters or the sale of the movie or any other ancillary benefit.

   3. Fair Use Database

      1. The Copyright office knows that this legal principle is incredibly difficult and has compiled an index of all the findings. See the resource here: https://www.copyright.gov/fair-use/fair-index.html.

In part two of this 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. 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.

Streamers on Twitch faced a new reality when the Recording Industry Association of America (RIAA), a conglomerate representing 85% of all music labels, issued huge numbers of "takedown notices” following review of Twitch’s back catalogue of VODs and clips. These notices drew attention to the use of three songs featured in streams between the years 2017 and 2019 and were the result of Twitch’s forced compliance with the requests to maintain DMCA safe harbor protection. Twitch now has to balance the rights of copyright holders and the streamers who make the platform a success. With Twitch's "three-strike" policy, streamers are penalized for actions from years ago and without any means to correct the actions. The shocked community continues to beg the platform for a better way. Twitch has stated that they will work with the community to enable better content management options, but unfortunately for many, the damage is already done.

While streamers and those in the industry knew that dealing with this issue is unavoidable, the sweeping application leaves many wondering: why Twitch did not learn from the mistakes of its competition? It is becoming common knowledge that as the digital media industry grows, more traditional media outlets are lashing out in a desire to get a piece of the profits and stay relevant. Twitch is not alone in being forced to deal with the grim reality of compliance with DMCA and the interplay of creating and controlling content on streams. YouTube encountered the same issue beginning in 2015 and still struggles to this day.

YouTube instituted dramatic changes in how it regulated copyrighted material and how "takedown notices" were processed leading to a near universal outcry from creators on YouTube. The volume of content on Twitch indicates that inspection, issuing of notices, and enforcement has been done via bulk computer-based review, similar to YouTube. This overbroad approach leaves many without answers for weeks as creators and streamers rely on clumsy appeal processes and manual re-review to either get their video monetization, avoid punishment, or to reinstate their video on the platform. Either way, creators and streamers lose out on valuable views and growth, but more importantly, they face the very real possibility of being removed from the platform without the ability to respond. If YouTube is any guide to how Twitch will handle this process, streamers should prepare for even more growing pains as Twitch attempts to balance the demands of traditional media, the law, and the needs of streamers everywhere. One of the most substantial hurdles for streamers on Twitch is the lack of control over what the audience clips. Twitch will need to ensure that there is a method to control audience generated content.

The continued controversy surrounding DMCA on digital platforms is unlikely to change. Streamers and creators will have to rely on the response of the platforms rather than government intervention. No particular agency has the authority to regulate or change the DMCA, which means that only an act of Congress can change the current predicament. Unfortunately, streamer and content creator rights are not a hot button issue at the federal level and no relief is on the horizon. Due to the widespread effect of the DMCA requests in the past week, we hope that Twitch will make incremental and meaningful change.

Prudent streamers will be extremely cautious of the content they use, and they will take steps to ensure that the music they play during streams is properly licensed. There are several options to avoid this issue. Streamers can play music from copyright-free services or, as long as the streamer complies with the terms, using services that offer music under Creative Commons.[1] Streamers can also subscribe to music licensing services such as Epidemic Sound, BMI, or ASCAP.[2]

If a streamer or creator receives a “takedown notice” the creator must decide how to respond. The streamer or creator should evaluate whether they have a right to use the content through a license. If they do, then the creator should assemble the appropriate documentation and or reach out to the rights holder and the platform. Each platform has an appeal process and the streamer may be able to resolve the issue without resorting to outside help. This follow through adds additional data to the platform’s machine learning program and helps others avoid the same false allegations in the future. With machine learning, a larger dataset has the highest likelihood of yielding more accurate results.

If the streamer or creator does not have any identifiable right to use the content, then they face  a difficult decision: delete the content, be banned from the platform, negotiate with the rights holder, or forfeit monetization and or be subject to the potential legal consequences. Many creators are now relying on online tools to delete their expansive back catalog, hoping that this will be enough to protect accounts that they have spent years building. This is a difficult and personal decision with a huge impact on the future of the creator’s channel. There are many factors to evaluate and we at GreenRoom Inc are available to help should the need arise. Please do not hesitate to reach out.

The DMCA

The Digital Millennium Copyright Act (DMCA) was designed to protect copyrighted material online and stop the infringement of digital or digital recreations of copyrighted works. Copyrighted material is any content where the creator has an exclusive legal right to the use of said content. The rights holder can restrict the authorization of others to do the same. Copyright attaches at the point that a work is reduced to a tangible medium, which means that any movie, television show, or professionally produced song is copyrighted. This includes music licensed as part of a video game, music playing on the radio, or the background score in a trailer. Infringement is the unauthorized display, use, or transmission of the copyrighted work. Platforms like Twitch and YouTube allow users to upload content independent of any immediate review from the platform. This results in huge amounts of copyrighted content being hosted at any one time. The liability related to the copyrighted content would make it impossible for platforms to exist. As a result, the DMCA provides safe harbor to Online Service Providers (OSPs), such as Twitch and YouTube, from liability for hosting infringing materials so long as specific conditions are met.[3] Online platforms depend on these safe harbors to avoid potential lawsuits. To keep the protection, as soon as the platform knows that infringing content is on the platform, it must remove or disable access to the infringing information.[4] If the platform fails to comply with these conditions, they could lose their safe harbor and be sued for infringement.

The primary way platforms are made aware of infringing content is through “takedown notices.” These notices are filed by the owner, rights holder, or a company authorized to perform takedowns on behalf of the rights holder. Platforms like YouTube and Twitch do not have an obligation to hunt for infringing content, just to remove it when they are provided notice that an issue exists. Part of the confusion in the community is that content stays up for years without issue as a result of the platform never actively looking to bring a “takedown notice” against a streamer or content creator.  As the platforms become more mainstream, traditional right holders and industry groups want compensation for the works to remain relevant. These organizations have purchased the rights to huge amounts of content, or are hired by the rights holder, and subsequently developed bots to “scrape” and review old content. These bots look for the use of copyrighted material and generate a “takedown notice” and report the streamer or creator. These bots are simply lines of code and do not undertake any due diligence or allow for any discussion between the creator or streamer and the rights holder until the damage is done. The platform is placed in an unwinnable position as it must balance between the need to retain the safe harbor provision and the wants of the community they create.

Twitch And YouTube Policies

While YouTube and Twitch are both struggling with the same issues, they have distinct methods of handling them. On Twitch, any third party can identify copyrighted material and file a complaint with Twitch. Twitch then takes down or mutes the content and imposes a strike on the streamer for violation of its DMCA Guidelines and violation of their terms of service.[5] This process takes place without any input or review from a human being. While machine learning has come a long way, it is still reliant on the reporting party who may look to abuse the system, and it is reliant on flagging false positives to distinguish between real infringement and anything that amounts to less than infringement. This process does not allow for any nuance or explanation until after the damage has been done. As a result, a user could face a ban without the opportunity to confront the issue or speak to a human about any solution.

YouTube has created a system where content creators can respond to and challenge these requests and solve these issues before facing a strike or ban on their account.[6] While still subject to exploitation, the process allows for some measure of due process for the creator and hopefully Twitch can adopt some of the more successful implementations.

These two systems have resulted in drastically different approaches from the userbase. It is becoming more common for streamers on Twitch to delete all VODs and clips to avoid any claim, which is occurring before anyone can check whether that content even contains infringing material. Some view this as a proactive solution, but the result is a loss of revenue and exposure relating to the decreased exposure and development of potential fans and viewers. A growing number are urging streamers to remain calm. They doubt Twitch's willingness to ban users, despite Twitch’s comments to the contrary, and believe that a new system could be developed to address the concerns. The current solution actively threatens Twitch’s business model, with less on demand content due to VOD and clip deletion, there is less content on the platform, marking a significant factor for existing streamers. Many could leave the platform entirely for alternative, more streamer friendly services.

Every platform has a slightly different approach and in the coming months, we shall see how Facebook and Mixer evolve their response to this very issue.

This article is for educational purposes only.

[1] https://creativecommons.org/about/program-areas/arts-culture/arts-culture-resources/legalmusicforvideos/.

[2] https://www.bmi.com/licensing, https://epidemicsound.com/, https://www.ascap.com/help/ascap-licensing

[3] 17 U.S.C. § 512

[4] § 512(c)

[5] Following, Twitch.tv, https://www.twitch.tv/p/legal/dmca-guidelines/

[6] YouTube, https://www.youtube.com/about/copyright/#learn-about-copyright