Using Recorded Music and Licensing

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Using Recorded Music and Licensing

Postby greyhoundx » Sun Jun 24, 2012 9:00 am

I’m not a lawyer, just a part-time photographer and occasional slideshow maker that has looked into various licensing issues for my own benefit. Did I know all this a few years ago when I started doing photos and some slideshows for friends? No. But now I know a lot more. Here’s my take on what I’ve been able to find on using recorded music and licensing, I hope this helps people understand the issue better.

There’s a lot of discussion and misunderstanding about what music people can use or share in their slideshows. The bottom line is if you want to legally use a favorite song performed by a particular artist for anything other than your own personal private use, then you need a different license - like for use in a slideshow you need a “master use license” – which has to be obtained from the copyright holder of the recording, and that has to be done for each and every track (song) you want to use. A synchronization license is usually also required. More details later.

When you buy a music CD, or a song from iTunes, etc. – you are only buying a license to use that recording for your own limited private personal use, you don’t own the song. You can’t sell or share that song, or use it in another artistic work – derivative work. You can’t make profit or benefit from that recording (song) in any way, you can only listen to and enjoy the song privately, that's it. You need to get another type of license for other uses. That’s the law (in the U.S. at least), that’s what’s right, and that’s what’s fair. Would I love to pay $.99 for a popular song everyone can connect with and be able to use it any way I want, including making money from it? Sure, but I can’t – and I wouldn’t want anyone doing that with my work either (photographs and slideshows in my case).

For the buyer of the song this may seem wrong. But for the artist, the writer, the performer of the song it is the right thing to do. Would you like other people to get your time, effort, and creativity for free – over and over again, with no benefit to you? Creative artists take a lot of risk in their trade – most may never make a lot of money, if any. There are the one-hit-wonders. Many have a short period of success. A few become superstars. But they all deserve to get paid for their work, ethically and as specified by copyright law – and have their work protected.

I’m always amazed at the people that will ‘share’ software, photos, music, movies, etc. but would never shoplift or steal from work. But that’s what they’re doing when they illegally share or use software, photos, music, movies, etc. I guess that situation tests the honesty of people – stores without walls – and a lot fail. Stealing is stealing. And even here I see people talking about the copyrighted music they’ve used in their slideshows. Ugh…

The scope and complexities of music licensing extend so deeply that if you film a video and there’s music playing in the background of whatever you capture – even though you didn’t play it yourself or initiate the playing of the music, you have to get clearance to include that music in your production. This means you could film a documentary in NYC and someone is playing a radio in the background that happens to be recorded – you need clearance!

Do I think that some of this is a bit too restrictive? Yes. Do I think that since so many people use copyrighted music in slideshows, the record companies should come up with a practical/affordable license and payment system so they could get some money for what people are already using? Yes. Am I going to hold my breath waiting for that to happen? No ! The music we know and love is so powerful, and would make our slideshows so much better and stronger, I do understand the desire to use it. Doing what's right isn't always easy.

Getting back to licensing and the various types, which can be confusing to us non-lawyers…

Payment for use of a copyrighted material is called a royalty. Royalty free music is where a performance, master use, etc. license is obtained but no further payment is required regardless of the number times performed, the number of copies sold, its inclusion in a derivative work, etc. depending on the type of license issued with the music. There may be payment required to obtain the royalty-free license, or simply a credit to the artist given, such as in the creative commons license.

Personal Use License – When you buy a CD or music download, you have a personal use license that only allows you to play the music for yourself and a small, typical amount of friends and/or family in a home setting. Any use beyond this is prohibited, unless another type of license is obtained. To the letter of the law, at least in the U.S., you cannot share the music (musical performance) with anyone else in any way, whether for free or for fee, via any type of media or access including CD/DVD, web, media file, etc. That includes someone buying the music and ‘letting you’ use it for a slideshow for the purchaser. Using the performance (work) of another is a derivative work, and permission to use it in such a way must be obtained (master use license) and any required payment/credit be given.

Commercial use is where you or a company directly or indirectly benefits from the use or sale of your work, or the work of another. The benefit can be financial, in trade for, for publicity, promotion, etc.. A bar playing music to entertain their customers or a photographer playing music in their studio while photographing subjects is commercial use. Something more than a personal use license is required for any type of commercial use.

A derivative work is where you use someone else’s work as part of a work that you create. Using someone else’s music in a slideshow is a derivative work and requires some type of legal permission or license.
http://en.wikipedia.org/wiki/Derivative_work

Performance License - Allows the use of a copyrighted music and lyrics or a performance by an artist, in a public performance. This does not include using it in your own work/slideshow.

Mechanical License - Allows the use of a copyrighted music and lyrics, when you or a 3rd party you’ve hired perform someone else’s music and lyrics for use in a CD or other recording.

Synchronization License – Allows the use of a copyrighted music and lyrics, when you or a 3rd party you’ve hired perform someone else’s music and lyrics in synchronization with a movie, video, etc. Reading this term’s definition sometimes seems to imply the use of a recording also, which would be what we want to do in our slideshows, but it’s not.
http://musicians.about.com/od/qz/g/synclicensing.htm

Master Use License – What we all wish we could do in our slideshows, easily and cheaply. This is use of a recorded performance by an artist of a musical composition. Permission to use it must come from the copyright holder of the performance, which can be difficult or impossible to obtain. Payment may also be beyond what you could ever imagine. And a synchronization license is usually required also !
http://musicians.about.com/od/ip/g/masterlicense.htm

Things like the creative commons license can allow you to use the artist’s recorded performance (master use license) so long as you credit them in your work, like with Kevin MacLeod:
http://incompetech.com/m/c/royalty-free/licenses/

There are several levels/types of Creative Commons Licenses, it's explained pretty clearly here:
http://creativecommons.org/licenses/

Here are several links to pages with relevant information on various licenses, uses, payments, etc. There are links on many of the pages to even more information:
http://www.proshowenthusiasts.com/viewt ... f=8&t=8583
http://www.proshowenthusiasts.com/viewt ... f=8&t=8758
http://www.proshowenthusiasts.com/viewt ... 14&t=14657
http://www.proshowenthusiasts.com/viewt ... 14&t=19948

http://www.ascap.com/licensing/licensingfaq.aspx
http://www.ascap.com/licensing/termsdefined.aspx
http://www.bmi.com/licensing/entry/533606
http://www.bmi.com/licensing/faq
http://www.bmi.com/licensing/entry/busi ... ing_rights
http://www.songclearance.com/faq/
http://www.sesac.com/Licensing/Licensing.aspx
http://www.sesac.com/Licensing/FAQsGeneral.aspx
“If you are using someone's property (song) there is a moral and legal obligation to obtain the owner’s permission. Under the Copyright Law of the United States, anyone who publically performs copyrighted music is required to obtain advanced permission from the copyright owner, or their representative. If you publically perform any copyrighted song without proper authorization you are breaking the law and can be held liable for damages from a minimum of $750 up to a maximum of $150,000 per song played!”

http://www.harryfox.com/public/DigitalLicenseslic.jsp
“Please note that HFA licenses do NOT cover the use of existing sound recordings or master recordings, which would be needed for certain types of ringtones. Such Master Use Right in existing sound recordings must be directly cleared with the appropriate copyright owner, usually a record company (label).”

http://www.themusicbridge.com/clearance-and-license
http://www.themusicbridge.com/clearance ... ce-primer/
http://wordmusic.com/home/copyright
http://en.wikipedia.org/wiki/Music_licensing
“master use licensing
the licensing of the recording of a musical work to be performed as a soundtrack, bumper, lead-in or background to a motion picture.”

Happy Birthday to You
The song "Happy Birthday to You" is the best known song in the world and generates over $2 million in royalties each year for its copyright owners.[7] The original author of the words to the song is unknown, however, the current owner is AOL Time Warner, who receives licensing revenues through the ASCAP. The music itself was written in 1893, and due to multiple copyright extensions, will remain so until at least 2030. In 1989, when Time Warner first purchased the piece, movie licenses for the song were going from anywhere between “a few thousand” to $50,000.[8]One reason the owner, Birchtree Ltd., decided to sell the copyright ownership was because they did not have a large enough unit dedicated to monitor its usage in new media. This became key in maximizing financial benefit, because previous owners failed to go after those who used the song without license for over 20 years.[7]

Some Royalty Free Music sources, note their licensing information, there can be restrictions and/or conditions:
http://incompetech.com/
http://www.jewelbeat.com/
https://www.smartsound.com/
http://www.digitaljuice.com/
http://www.stockmusic.net/
http://www.triplescoopmusic.com/
http://freemusicarchive.org/
http://www.pdinfo.com/
http://www.theframelocker.com/lockersound.html
Last edited by greyhoundx on Mon Jun 25, 2012 5:08 pm, edited 3 times in total.

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Re: Using Recorded Music and Licensing

Postby BarbaraC » Sun Jun 24, 2012 9:51 am

You did a sensational job of, not just explaining copyright, but also of explaining WHY there's such a thing as copyright. This thread ought to be made "sticky" so it sits right at the top.

The only thing not quite correct is at the very bottom. I'm listed as a source for royalty-free music, which I am, but the link you give is to my "Resources" page as opposed to Locker Sound where there are both songs and sound effects.

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Re: Using Recorded Music and Licensing

Postby greyhoundx » Sun Jun 24, 2012 10:15 am

Thank you Barbara ! I know the post is a bit long but I hope it's helpful to many here. I know most people want to do the right thing, and understanding the what and why can go a long way to making that easier - and more likely to do.

Sorry your link was wrong, I just corrected it. Any other errors you folks see, just let me know. And I just clarified something in the 2nd paragraph that I didn't like looking back on it.

Rick

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Re: Using Recorded Music and Licensing

Postby BarbaraC » Sun Jun 24, 2012 10:25 am

Rick, it's a constant here on the forum with people asking about the law, which isn't very easy to understand, but then, are any laws other than the original ten easy to understand? I think not. You've helped simplify things by not using legalese, which could obscure almost any activity, even brushing your teeth.

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Re: Using Recorded Music and Licensing

Postby Merlin_AZ » Mon Jun 25, 2012 11:08 am

Nice post.
Thanks for the information.

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Re: Using Recorded Music and Licensing

Postby martinsta » Mon Jun 25, 2012 11:42 am

Wow, this is information we can use!
Great job and yes, this should be a sticky.

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Re: Using Recorded Music and Licensing

Postby greyhoundx » Mon Jun 25, 2012 5:15 pm

Thanks everyone. I just clarified the Creative Commons License section a tiny bit. I hope I'm done editing this thing, I just want it to be the best reference on the subject possible.

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Re: Using Recorded Music and Licensing

Postby hobler » Mon Jul 02, 2012 6:05 pm

Rick,

This is indeed great information. But I'd like some help in looking at it from another angle. It's nice to know all the different types of licenses and what they mean but that's too much information for me. It's true most of us want to be sure to do the right thing. For me, it's a question of "here's what I do with music or here's what I want to do for the next slideshow" now what license do I need for that purpose. I'm not running a business; just doing this as a hobby.

For example, whenever a friend or relative goes on a trip, vacation, has an event or just has a group of pictures/videos he shows me I like to take them and do some editing and set up a show as a gift from me. It's fun and is usually appreciated. As I get better at this I like to add music or sounds, etc. What license do I need to get for this and what are the sources of music/sounds that are best for this. What about the stuff that I get from Photodex in their content offerings (which, by the way has been the source I use most). I have learned that putting the finished product on a DVD is NOT the same as sending via facebook or vimeo. They have refused to post some of my stuff because it has copy-written material in it (like a funny little "Happy Birthday" show for my brother).

Thanks in advance for your reply,

Bob
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Re: Using Recorded Music and Licensing

Postby hobler » Mon Jul 02, 2012 6:37 pm

Sorry, everybody. I just discovered the Music forum section and realize I just need to do the research for myself. There seems to be everything I need to know about in previous postings. Thanks anyway. :oops:
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Re: Using Recorded Music and Licensing

Postby greyhoundx » Tue Jul 03, 2012 7:45 pm

No problem Hobler, I created a post that I hoped would leave no questions or gray areas, and provide background and extra info, but it was very long to be that thorough. The short answer you should have come up with is that whenever you you take someone else's recorded musical performance and use it to create a slideshow that requires a "master use license": http://musicians.about.com/od/ip/g/masterlicense.htm

You get that "master use license" through acquiring permission from the owners (copyright holders) of the recorded musical performance and the music & lyrics (composer) for each and every track (song) you use. For the popular songs we know and love that usually means the record company. The copyright holder has absolute and final say over the use of their material, and permission has to be received to use it 100% legally, even if there's no money to be made. Something called "fair use" allows for private personal use - which can include non-public display for friends and family, but going anywhere beyond that can expose you to a felony conviction, jail time, and a $250,000 per song fine. May not be likely, but I'd hate to be the one a pack of lawyers decide to make an example out of !

Now, for royalty-free music we get from Photodex, when you buy it, you buy the master use license. When you buy most other royalty free music you get a master use license, but not always, some pieces may be restricted to non-commercial use, etc. When you get music from sources like Kevin MacLeod who use a Creative Commons License you may get a master use license for simply giving the artist a credit in your work (like with Kevin), depending on the type of license they grant for each track: http://creativecommons.org/licenses/

Music is strictly protected by copyright, whereas other peoples' photographs can sometimes be used more liberally - something I didn't cover. Here's a very good page I just found that explains things pretty well, not too long and very informative. Take a look: http://www.lqgraphics.com/software/arti ... yright.php

A somewhat longer and more concise article: http://www.reelseo.com/copyrighted-music-in-video/

Let me know if that's what you came up with hobler, I'm no lawyer, just a consumer/creator trying to know what's really right with a complex subject. Once we know that, we can make our decisions - right or wrong - with informed responsibility. I hope this shorter version helps heal any glazed over eyes ! And if this short version seems correct to everyone maybe I'll make it a separate post, since some may bail out from the long one before getting to this...

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Re: Using Recorded Music and Licensing

Postby Tonel » Tue Jul 03, 2012 11:31 pm

A very interesting and informative post, greyhoundx, but UK based readers should note that the statement in your last post,
Something called "fair use" allows for private personal use - which can include non-public display for friends and family
doesn't apply.

The shows I make are only for family and friends so I thought I'd check out if what you said applies under UK law. I looked at these sites:

http://www.copyrightservice.co.uk/copyr ... _of_others
http://zine.openrightsgroup.org/comment ... over-again

It's clear that under current UK law 'fair use' does not extend to using copyright material in our UK slideshows.

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Re: Using Recorded Music and Licensing

Postby greyhoundx » Wed Jul 04, 2012 6:09 am

Yes, good point Tonel, my post was in reference to U.S. copyright law - your mileage may vary in other countries ; )

Looking at your links it did seem there was an interesting difference - musical recordings are only protected for 50 years in the U.K., so I take that to mean that any sound recordings made in 1961 and earlier are now able to be used, which would mean that early Beatles recordings will be able to be used in a couple years !? Obviously 50 years is a lifetime or two in terms of 'popular' music, but here the copyright on music is pretty much forever - pretty much due to the recording industry lobbying to get their way - otherwise it would be based along same the lines of that for photographs...

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Re: Using Recorded Music and Licensing

Postby greyhoundx » Wed Jul 04, 2012 9:54 am

And actually Tonel, to the letter of the law in the U.S. as I read it, when we purchase a song we can listen to it in the privacy of our home with a small group of friends and family - as recorded music only. To use it in a slideshow is actually a use outside of the personal license (to listen) granted when we buy the song. Incorporating it in a slideshow is a derivative work and really requires the authorization of the copyright holder(s) - I don't think that fair use really goes as far as the article I linked says: http://www.lqgraphics.com/software/arti ... yright.php

But the potential harm to the artist for use in a slideshow that's restricted to a very small, private personal audience is limited and non-economic. The chance for discovery of such a use done as such is almost non-existent. Is it still wrong? Yes, I think to the letter of U.S. law it is, and therefore morally it is wrong too. But this is where we really need a lawyer to define this - but if it's that unclear and arguable, is it a practical law to impose and enforce? I've been to more than a few presentations by professional photographers with dozens or hundreds of attendees, and sure enough, they'd show some of their work and maybe advertise themselves in a slideshow using popular copyrighted music. I even asked a few times if they had a license to do so, and they'd just sort of smile and say "no, not really".

But like I mentioned in my long post, if a photographer plays copyrighted music while taking still photos of a client, they need to purchase a performance license - this was pointed out in one meeting by a PPA (Professional Photographers of America) representative. Same goes for a bar or restaurant that plays music for their customers, although there are conditions on how many rooms and speakers are involved !!! Which makes this just a little simpler than our complex tax codes ! : p

If the law were to change and perhaps I could pay $20 for a master use license per song plus small royalties, and it was to be included in a slideshow to be sold with less than 100 or 500 copies made, I think that would benefit us greatly creatively and economically, and the copyright holders would get some money for what's being done already, at least from the honest ones among us. When only lawyers can understand it and only courts can resolve it, has it gone too far? Are the current laws just a money maker for the lawyers and the copyright holders have lost already ???

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Re: Using Recorded Music and Licensing

Postby DickK » Wed Jul 04, 2012 2:19 pm

First, thanks for compiling all that information and links. IP law is a subject I've spent some time with and tried to make sense of in several contexts including copyright and licensing. There's always an exception and many of the licensing rules make no sense (at least not to me).

Two caveats that I think every one here should be aware of:

-- All this varies by country. Some fundamentals carry over across many nations, those that signed the Bern Convention (includes the US) in particular, but if you're not in the US, many things will be different.
-- No one other than a judge can ever say definitive things about a specific case. A lawyer can tell you what the statute says and what the applicable case law may be, but it comes down to a judge ruling on a specific case--though IP cases mostly get settled out of court.

At one point the OP implied that copyright cases are felony infractions. As I understand it, certain bodies have managed to get some cases handled that way and certain, specific things in some laws (Digital Millennium Copyright Act in particular) can be treated as criminal cases, but generally speaking, IP cases (copyright and trademark infringement specifically) are civil cases. That changes little about the discussion, but it can be important if the tables are turned, i.e., if you are the one attempting to enforce your rights, you will almost always be discussing civil litigation with your attorney.

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Re: Using Recorded Music and Licensing

Postby Tonel » Wed Jul 04, 2012 10:29 pm

greyhoundx

The current UK 50yr copyright limit is due to be extended to 70yrs in 2014 by EU law.

http://www.guardian.co.uk/media/2011/se ... -extension

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