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.