Digital creators, especially YouTube creators, face a particularly difficult challenge when acquiring music for their productions. The biggest threat is getting nabbed by YouTube’s contentID system, or worse, getting a DMCA strike. It doesn’t help that music licensing is a particularly muddy topic.
Understanding how music breaks down
A piece of music doesn’t actually have a single license. It has multiple licenses to handle the different parts people contributed to. Its usually composed of rights associated with each step of music production that eventually gets us to a master track or recording. This is particularly important, as you need to know the type of license for the different parts of a song you would like to use. While getting a license can be pretty straight forward if you are dealing with a single artists who writes, performs, and records their own music; label music can become very, very complicated. Keep this in mind when pursuing a piece of music you would like to use.
To detail the complication in licensing, the following is a breakdown of music and the licenses associated to different aspects of music creation.
Publishing and Creative Rights
A song is written, and composed by one or many contributors. In order to recreate a written song, you will need to compensate the contributors to the song. These people make their money on creating songs for themselves, or others to perform and record. The major labels employ entire teams of people to just turn out compositions, and those people expect to be compensated when their work is used to create new recordings of music. The written music is broken down into two main pieces; lyrics and composition.
There are usually a few, or a series of writers who create lyrics for your favorite piece of music. There writers actually own the right to reproduce these lyrics for any recording. The license needed is quite clearly lyrics copyright. This is particularly important if you want to create a cover of a song that uses these lyrics, write the lyrics in full, and publish them on the web, in a piece of software, or in print.
A piece of music is comprised of written music. This is the actual composition of the rhythm, instrumental parts, and general melody. This goes as far as any guitar riff, or identifiable piece of music that might have been written in a song. Legal battles have been fought over guitar riffs that appeared in other recorded music. See See Vanilla Ice’s Ice Ice Baby and Queen/David Bowie’s Under Pressure. The rights for composition is quite obviously called Composition Copyrights. If you were interested in recording a cover of a song, then you need to seek out composition rights to use the composition of a song. Acquiring these rights gets a bit tricky, as you have to work directly with the composers, or proxy, of a song in order to get the rights to recreate it. In a lot of cases, this can be multiple artists, and producers. If you are creating a cover of a song, this is something you need to get in order to perform a song. This is inconsistently enforced, as some artists don’t take issue with a cover of a song, unless you are using a composition, and selling CDs or digital copies of it. Seek out the license at your own discretion.
This is a license that is specific to “republishing” a work of music. This is almost always specific to distribution. You should consider it if you will be selling copies of a video, album, or something else that will get distributed for a customer to own. This has historically meant selling a DVD, CD, vinyl, etc… In a modern sense, this has included things like a digital download of a piece of content that would contain a written musical composition. In order to gain these rights, you have to work directly with the artists and production team, or the organizations that represent them.
When copyrighted composition is played in a public space, its writers, producers, and performing artists are all entitled to compensation for the right to use their property. Essentially, if a group of people can hear it without having to pay to hear it, then it's likely subject to a performance rights royalty. The people who are usually responsible for paying this is the entity or organization benefitting from the playback of the song or recording. Radio stations have to pay the royalties. YouTube has to pay the royalties. A sports arena has to pay the royalties. You don’t necessarily have to seek out performance rights to use recorded music, but you will likely have to pay money to a performance rights organization if you want the music played in a public space. Even Starbucks has to pay these fees for the right to play music in their stores.
Performance and PROs
Performance rights are the rights to perform (read: play back) a piece of music. In most cases, an artist grants a 3rd party the right to collect performance royalties on behalf of them. These are commonly known as PROs (performance rights organizations). In some cases, you need to be granted specific performance rights from the musician. This is only on very specific use cases, require express permission from a rights holder.
If a piece of digital content uses a music recording that has a PRO attached to it, it means that the PRO will collect a portion of revenue made from that piece of music from the entity or organization that is benefiting from it. For YouTube, this means that YouTube pays a royalty to the PRO on behalf of any user who has uploaded a video with a music recording that has a PRO. While all this sounds very complicated, it means very little for the YouTube creator who has uploaded the video. Their only obligation is to provide the platform (YouTube in this case) with a “cue sheet” that informs them what music recording was used, and in what parts of the video. YouTube takes care of the rest.
Performance Rights and PROs
Recorded Music Rights
Recorded audio rights, or master recording rights are the most common licenses people need to get in order to use a recorded piece of music. After all, most people aren't looking to record their own version of music, they are looking to use an existing piece of recorded music. In commercial music, this is the label. They go out of their way to find artist to create music they can market and sell, and, in some cases, they outright buy labels to acquire a repository of recorded music. Because there is big business in this, it is pretty fiercely defended. For production music, 3rd party publishers usually acquire the right to republish and distribute recorded audio. These rights break down into two major types of rights: master rights, and mechanical rights.
This license grants you the right to playback a master recording of a song, but limits the distribution of the use. This is usually reserved for the use in theatrical movies, or broadcasted radio or television. These usually have timed use, or royalties included. For most streamed digital content, you will need to get a sync license to use a recorded music works. Again, most labels and music catalogs control the rights to this, as they are the teams that pay for a recording from an artist, thus they can grant the permission to use it.
This is a license that is specific to “reproducing” or "republishing" a master recording. You should consider it if you will be selling copies of a video, album, or something else that will get distributed for a customer to own. This has historically meant selling a DVD, CD, vinyl, etc… In a modern sense, this has included things like a digital download of a piece of content that would contain a recorded music masterwork.
Notice that this is almost identical to the mechanical right granted under "publishing and creative rights." This is because one grants the rights from the artist to republish a composition. The recorded rights allow you to republish the actual recording.
In some cases, music publishers, and labels put together a set of licenses to ease the difficulty in getting clearance to use music in certain uses. The most common one is Sync rights, which is a type of license package that was created to deal with digital streaming and distribution. Before sync rights, a company might have to seek out a mechanical, master, and performance right to use a piece of music before they were able to apply it to their content. Below is a set of packaged rights that are the most common.
This is the most important license that digital content creators have to worry about. This grants a licensee the right to play back a recorded piece of music in their project, with pre-set restrictions on use and distribution. More importantly, it almost always pre-clears the use of the content with the artist, allowing the user to just get a sync license for their needs, as long as they follow the restrictions. This specifically relates to the rights to the use of a master recording, and not the reproduction of a composition. Most production music catalogs own recordings that they grant sync license to, and only require the user to have a single place to shop to get everything they need.
Ah, the biggest misunderstood concept in copyright. To start, there isn’t a true definition of fair use. It’s been interpreted by district courts, but it generally falls into a defense for using a copyrighted video, or audio for review or critique purposes. If you are recreating new, non-critical videos or audio with copyrighted material, expect it to get flagged. Generally speaking, this is a thing you should avoid, as there is very little precedence that grants broad usage rights of a piece of copyrighted content. If you have copyrighted audio in your video, expect it to be flagged and demonetized, or seek out license to use it.