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.

by Mitchol Dunham and Will Hanisch

                The Federal Trade Commission (“FTC”) announced a record-setting fine against Google and YouTube. As a result of the settlement, Google and YouTube agreed to pay $170 million for violations of the Children’s Online Privacy Protection Act (“COPPA”) and make systemic changes that leave family friendly content creators with little option but to change their business model. As part of the settlement, on or before January 1, 2020, channels will be forced to self-certify whether they make content directed at children, defined as having a target audience which under the age of 13. Children’s content creators will no longer have access to monetization from behavioral ads. Behavioral ad rates are specific to individual creators, but the loss of this revenue may be crippling for creators.

The Settlement

                On September 4, 2019, YouTube and Google agreed to a settlement to resolve the allegations that they violated COPPA. This settlement included an agreement to pay a fine and undergo substantial changes in their data collection practices. The fine, while record-setting, represents a small percentage of the annual revenue of either company. The more impactful changes, both for YouTube and its content creators, will come as a result of the changes to advertising and data collection.

                The changes required by the settlement include YouTube implementing a system for content creators to designate whether their content is directed to children.[1] All content creators are required to participate in this system.[2] Second, YouTube must provide annual training to its relevant employees covering COPPA.[3] Third, YouTube must comply with the requirements of COPPA.[4] Compliance includes: (1) disclosing to parents the company’s data collection practices regarding children under 13; (2) providing direct notice to parents about those practices; (3) obtaining consent from the parent to use his or her child’s data; (4) giving the parent full control over his or her child’s data; and (5) not requiring more personal information than is reasonably necessary to allow a child to use the platform.[5] Fourth, YouTube must refrain from disclosing, using, or benefitting from the data previously collected from content directed to children.[6] Finally, YouTube must submit compliance reports establishing its continued adherence to the settlement, and in effect, compliance with the requirements of COPPA.[7] See here for a more in-depth discussion about COPPA, its requirements, and YouTube’s violations.

What This Means and Future Steps

                In a blog post on September 4, 2019, Susan Wojcicki addressed the settlement and announced several initiatives and changes for children’s content on YouTube. Ms. Wojcicki announced new data practices for children’s content. YouTube will no longer treat children’s content as it would any other content. Instead, data collection will be limited to only what is necessary to operate the service. YouTube will stop serving behavioral advertising on children’s content, and some features will be eliminated entirely, such as comments and notifications. Deciding what is classified as “children’s content” will be a two-step approach: self-flagging from content creators and a machine learning algorithm that will find videos clearly targeting kids, for example “[videos] that have an emphasis on kids characters, themes, toys, or games.”[8]

                Ms. Wojcicki noted two other platform changes in association with the settlement. First, an increase in investment in promoting YouTube Kids and continued investment in the product.[9] The YouTube Kids app will soon be brought to the desktop.[10] Second, Ms. Wojcicki notes that the change in advertising scheme will have a significant impact on “family and kids creators.”[11] YouTube will be giving content creators four months to “adjust before [the advertising] changes take effect on YouTube.”[12] YouTube is also “establishing a $100 million fund, disbursed over three years, dedicated to the creation of thoughtful, original children’s content on YouTube and YouTube Kids globally.”[13] Whether that fund actually makes it to a individual content creators is something that is hotly debated in the community.

                As of the time of this posting, children’s content creators are left with more questions than answers. It is possible that larger content creators may see increases in sponsored content and direct licensing opportunities as advertisers look to continue targeting this incredibly lucrative demographic. These gains could potentially off-set or exceed the revenue lost from behavioral ads. We do not know what actual impact this settlement will have on creators who rely more heavily on ad revenue. They may be forced to either pivot their content to retain access to behavioral ads or attempt to survive on contextual ads alone. This choice will be especially hard for gaming creators. While live action creators can diversify income streams through direct sponsorships, gaming creators have fewer income streams off of the YouTube platform. In any case, this settlement is a wake-up call to content creators and platforms alike that the FTC is able and willing to regulate the online space. Online creators and businesses must take action to comply with COPPA and FTC integration guidelines or risk being subjected to serious consequences. Hopefully YouTube and other platforms will acknowledge the rampant misinformation that is currently being distributed and put creators at ease as to their future.

                Next week, we will take a look at the questions still unanswered by the settlement, including potential enforcement areas on the horizon for the FTC. If you have questions about this article or how the YouTube policy changes might affect your channel, reach out to the GreenRoom team.

[1] In re Google LLC & YouTube LLC, FTC File No. 172-3083, 10 (Sept. 4, 2019) (settlement agreement).

[2] Id.

[3] Id. at 10–11.

[4] Id. at 11.

[5] Federal Trade Commission, Protecting Children’s Privacy Under COPPA: A Survey on Compliance 1–2 (Apr. 2002).

[6] In re Google LLC & YouTube LLC, at 12 (settlement agreement).

[7] Id. at 15–19.

[8] Susan Wojcicki, An update on kids and data protection on YouTube, YouTube Official Blog (Sept. 4, 2019), https://youtube.googleblog.com/2019/09/an-update-on-kids.html.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

by Mitchol Dunham and Will Hanisch

                COPPA was passed with the intent of protecting children from online dangers. COPPA required the FTC to create rules that will govern the online collection of personal information from children aged 12 and under.[1] In summary, the rules passed by the FTC require that a website: (1) disclose to parents the website’s data collection practices regarding children under 13; (2) provide notice to parents about those practices; (3) obtain consent from the parent to use his or her child’s data; (4) give the parent full control over his or her child’s data; and (5) not require more personal information than is reasonably necessary to allow a child to use the website.

                The dispute between the FTC, the New York Attorney General, and YouTube centers around the use of tracking cookies to serve personalized advertisements (specifically the use of persistent identifiers for behavioral advertising). YouTube allows for two types of advertisement: contextual advertising and behavioral advertising. By default, a channel that monetizes through advertisement revenue is set up to use behavioral advertising[2], which places a cookie on the user’s device and tracks “the viewer’s online activities to serve advertising that is specifically tailored to the viewer’s inferred interests.”[3] While channels can opt-out of behavioral advertising and opt for contextual advertising; this generates less revenue for the channel.[4]

                In various statements and presentations to potential advertisers, YouTube branded itself as one of or the most popular destinations for kids, including those under 13.[5] Despite this branding, YouTube asserted that channels do not need to comply with COPPA because they “don’t have users that are below 13 on YouTube and platform/site is general audience, so there is no channel/content that is child-directed and no COPPA compliance is needed.”[6] These two statements are inconsistent, and this lead to the complaint being filed by the FTC and the New York Attorney General which alleged that Google and YouTube violated requirements (1), (2), and (3).

[1] Federal Trade Commission, Protecting Children’s Privacy Under COPPA: A Survey on Compliance 1 (Apr. 2002).

[2] In re Google LLC & YouTube LLC, FTC File No. 172-3083, 7 (Sept. 4, 2019) (complaint).

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 8–9.