Digital Media Law / Packard, Ashley

Quick tips on music and copyright law by Ashley Packard, author of Digital Media Law

The easy accessibility of content and information on the internet has raised a number of questions related to copyright and trademark law. The information provided here delves into a few of the copyright issues surrounding the use of music. However, it should not be construed as legal advice. I am an academic who does legal research, not a licensed attorney.

Can I use a song in a short promotional video?

You should request a license for a song before using it in a video, because when unlicensed music is incorporated into a commercial product without the copyright holder’s permission there is very little leeway for fair use.

An Austin, TX, wedding photographer was sued for copyright infringement for the unlicensed use of Coldplay's "Fix You" as theme music in a wedding video he produced for Dallas Cowboys quarterback Tony Romo and his bride, after it went viral on YouTube. He settled the suit for five figures (exact amount undisclosed).

What if I bought the song?

There is a difference between buying a song and buying a license to use the song. Buying a copy of the song on a site like iTunes means that you have paid for a copy for your private use, not a public performance right to broadcast the song on the Web.

What kind of license do I need?

You need a synchronization license from the music publisher (to combine your video with the musical work). If you want to use a particular version of the song (by a favorite artist, for example) you need a master recording license by the record label as well.

What is the best way to get a license to use music?

There are established music clearance and licensing companies that can help with this, or you can do it yourself. The music publisher and recording company will want to know how much of the song you want to use (all or just a part), how long you plan to use it, the territory in which it will be used, and the venue for use (TV, movies, online).

Music publishers are BMG, Warner, and EMI, ASCAP and SESAC. Sound Exchange and record companies themselves license exclusive rights on behalf of copyright owners in a sound recording.

Isn’t using a small amount of something in my video a fair use?

This is always a tricky question. Courts decide what is fair or not after a lawsuit has been filed. Commercial uses are less likely to be considered fair.

Are there other sources for music?

Consider using music licensed through Creative Commons if money is tight. Creative Commons provides licensing options to artists who want to share some or all of the rights to use their work. Look for music licensed for commercial use and alteration (since syncing the song with a video involves that).