Music is protected by copyright laws, which means you typically need permission from the copyright holder to use their music. However, there are some exceptions that allow you to legally use copyrighted music without permission in certain circumstances.
What are the requirements for legally using copyrighted music?
There are a few key requirements you must meet to legally use copyrighted music without permission:
- Make sure your use qualifies as a fair use – using a short excerpt for purposes like criticism, commentary, news reporting, teaching, scholarship, or research may be considered fair use.
- Properly license any music you use – obtain licenses from performance rights organizations like ASCAP, BMI, SESAC, etc. if publicly performing or broadcasting the music.
- Abide by the terms of any compulsory mechanical licenses – if reproducing and distributing a musical composition, you must adhere to requirements like providing proper notice and paying royalties.
- Secure synchronization licenses – obtain synchronization licenses from publishers if you want to use music in timed relation with visual media like film, TV, ads, video games, etc.
Failing to properly license music or meet the requirements for exceptions like fair use leaves you vulnerable to copyright infringement claims.
When is using copyrighted music considered fair use?
Using copyrighted music may qualify as fair use if:
- You only use a small portion of the work – generally less than 10-15 seconds.
- Your use is transformative – you add new meaning or expression rather than just replicating the original work.
- You use it for purposes like news reporting, commentary, criticism, teaching, scholarship, or parody.
- Your use does not negatively impact the market for the original work.
For example, briefly sampling a song in a parody or using a few seconds in a news report about that song may qualify as fair use. However, simply uploading the full song to share with others does not.
How can I get a compulsory mechanical license?
To obtain a compulsory mechanical license to reproduce and distribute a musical composition:
- Serve a notice of intent to the copyright holder before distributing the work. This typically goes to the music publisher.
- Make sure your primary intent is to distribute the music, not just publicly perform it.
- Pay statutory royalties to the copyright holder – currently 9.1 cents per song or 1.75 cents per minute if the song is over 5 minutes.
- Provide proper attribution by including songwriter and copyright information on copies.
- Submit reports of distribution and royalty payments.
This allows you to legally reproduce and sell an existing musical composition without direct permission from the rights holder as long as you meet the requirements.
| Song Length | Royalty Rate |
|---|---|
| Under 5 minutes | 9.1 cents per copy |
| Over 5 minutes | 1.75 cents per minute or fraction thereof |
When do I need to obtain a synchronization license?
You need a synchronization (“sync”) license if you want to:
- Use music in timed relation with visual media like film, TV shows, advertisements, video games, etc.
- Create a music video featuring a particular musical composition.
- Include copyrighted music in things like toys, greeting cards, apps, multimedia presentations, etc.
Synchronization licenses give you permission to reproduce the music along with the visual/audiovisual work. The rates and terms are negotiated directly with publishers rather than a statutory rate.
How do I obtain public performance licenses?
To publicly perform copyrighted music, you need licenses from Performing Rights Organizations (PROs) like:
- ASCAP – licenses the public performance of compositions from its repertoire.
- BMI – licenses performances of works in its musical composition catalogue.
- SESAC – issues licenses for both compositions and recordings in its repertory.
Examples of public performances include playing music on the radio, at concerts, bars, shops, theme parks, sporting events, or on television. The PROs each offer different licenses depending on the type of venue and usage.
Public Performance License Types
| License Type | Description |
|---|---|
| General Licensing | For businesses that regularly play music like bars, restaurants, radio stations, etc. |
| Broadcast Licensing | For broadcasting recorded music over TV, radio or the internet. |
| Live Music Licensing | For venues hosting live musical performances. |
| Digital Licensing | For online/digital music usage such as streaming. |
What are the penalties for copyright infringement?
If you use copyrighted music without proper licenses, permissions or adhering to fair use guidelines, the penalties can include:
- Cease and desist orders
- Formal takedown notices requiring removal of infringing content
- Statutory fines of up to $150,000 per work infringed
- Lost revenue damages – copyright holders can sue for actual damages plus any profits attributable to the infringement
- Attorneys fees and court costs
- Injunctions barring you from using the infringing content
- Criminal charges for willful, large-scale commercial infringement
It’s crucial to ensure you have the proper licensing for any copyrighted music you use. Consult an attorney specialized in copyright law if you have any concerns about infringement liability.
Conclusion
Using copyrighted music legally requires careful navigation of various licensing requirements, rules around fair use, and applicable copyright law. Failure to do so can result in severe penalties. But by understanding the regulations around various uses like public performances, distribution, synchronization with visual media, and exceptions like fair use, you can properly integrate music into your productions while respecting rights holders’ copyright protections.