Digital creators (and especially YouTube creators) face a particularly difficult challenge when acquiring music for their productions. The biggest threat is getting nabbed by YouTube’s Content ID 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, each designed to handle a different part of the music ecosystem to which people contribute. The licenses are 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. Obtaining a license from a solo artist who writes, performs, and records their own music can be pretty straightforward. On the other hand, obtaining a license for music produced or managed by a label music can be very, very complicated. Keep this in mind when pursuing a piece of music that you would like to use.
To detail the complication in licensing, the following is a breakdown of the licenses associated with different aspects of music creation.
Publishing and Creative Rights
A song is written and composed by one or many contributors. In order to recreate (or publish a performance) a written song, you usually 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 publishers 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 several writers who work together to create lyrics for your favorite piece of music. These writers actually own the right to the lyrics and can grant a license for those lyrics to be used in any new recording. The rights to lyrics are known as Lyrics rights. This is particularly important if you want to record and distribute a cover of a song that uses these lyrics; present or display the lyrics in full; 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 notated rhythm, instrumental parts, and general melody. This goes as far as any guitar riff or identifiable portion of music that might have been written into a song. Legal battles have been fought over guitar riffs that appeared in other recorded music. See Vanilla Ice’s Ice Ice Baby and Queen/David Bowie’s Under Pressure. The rights to composition are quite obviously called Composition rights. If you were interested in recording a cover of a song, then you need to seek out composition rights to actually use the composition of that song. Acquiring these rights gets a bit tricky, as you have to work directly with the composers of a song (or their representatives) in order to get the rights to record it. In a lot of cases, this can be multiple artists and producers. This is inconsistently enforced, as some artists don’t take issue with a cover of a song unless you are using their composition and making money from it (e.g. selling CDs, digital copies, streaming revenue, etc.). Seek out the license at your own discretion. A one-off performance is usually safe.
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… More recently, this has expanded to include things like digital downloads 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 a copyrighted piece is played in a public space, its writers, producers, and (sometimes) 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. Television networks pay the royalties. You don’t necessarily have to seek out performance rights to use recorded music, but someone will likely have to pay money to a performance rights organization if the music is 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 written piece of music. In most cases, the publishers of a piece of music give 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 publishing group, but it’s usually when used in a movie, or a high budget piece of advertising and the artists have a big enough brand to command specific contracts. Only 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 containing a music recording that is registered with that 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 tells YouTube what music recording was used, as well as 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 most commercial music, this is the music label's domain. Music labels go out of their way to find artist to create music that they can market and sell. In some cases, they outright buy other labels to acquire a repository of recorded music. Because there is big business in this, it is pretty fiercely defended. For production music (read: not commercial music), 3rd party publishers (e.g. production music libraries such as Pond5) 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 that playback. This is usually reserved for use in theatrical movies or broadcast radio or television. These rights usually come with time limitations or royalty requirements. Again, most labels and production music libraries control the rights to this. For most streamed digital content use cases (e.g. web videos), you will need to obtain a sync license (that bundles Master rights into a rights package) to use a recorded music work (see below).
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… More recently, this has expanded to include things like digital downloads 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 allows you to republish a composition while the other allows 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 mediums. 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, typically subject to pre-set restrictions on use and distribution. More importantly, it almost always pre-clears the use of the content with the artist, providing the user with a faster, easier path to safely license the musical work. This specifically relates to the right to use a master recording and not the reproduction (or cover) of a musical composition. Most production music libraries sell sync licenses, which provide the customer with everything they need safely use the licensed work in their project.
Ahh, 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 work 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, either expect your video to be flagged and demonetized/removed, or seek out the necessary licenses to use said material.