This will be Part 2 of my overview on copyright and DMCA on Twitch. You can find the first article here. This article will focus on common misconceptions brought up by streamers and legal ways to include music on your streams. Feel free to send me an email if there are any other copyright myths and assumptions that can lend to a third article.
Common Misconceptions
- It is not copyright infringement if I’m not making money from it
This is the most common myth I’ve seen online, but I am sad to tell everyone, a financial benefit is not an element of infringement. To prove copyright infringement, the plaintiff only has to prove 1) plaintiff owns a valid copyright and 2) defendant violated at least one exclusive right.1 Exclusive rights can be found in 17 USC §106 To prove that the plaintiff has a valid copyright, they must show that the material was 1) original with a modicum of creativity and 2) they adhered to the statutory requirements.
However, making money from someone else’s content can impact an infringement lawsuit. This myth might come from two different conflated principles. First, one of the factors in a fair use defense is “the effect of the use upon the potential market.” Since fair use is an affirmative defense, this analysis is different from determining if an infringement occurred. Also, the fair use factor is generally more broader in scope than just simply receiving a financial benefit from the copy. The second way financial gains might affect a lawsuit is when calculating damages. If a plaintiff can successfully prove an infringement case, the defendant may owe monetary damages to the defendant in the form of actual or statutory damages. Actual damages are what the plaintiff actually lost from the copying, which generally includes the money the defendant gained from the copy. The plaintiff can also elect to take statutory damages instead if actual damages are too low. This ranges from $730 – $30,000. Note that this does not include the statutory damages for willful infringement, which can go up to $150,000.
- I can stream copyrighted material if I delete my VODs and clips
Deleting VODs and clips have been a popular tactic to avoid copyright claims on Twitch, however, this may give a false sense of security. Yes, it does help hide the fact that an infringement occurred or it might even satisfy the copyright owner to not take legal action, but the fact is – infringement already occurred. Once the streamer violates any exclusive rights, including displaying or performing a work, the streamer open themselves to legal liability regardless if there is a VOD or clip.
Moreover, streamers might not be as safe as they think using this tactic. It is well known that music rights owners send out monitoring agents to businesses such as restaurants and bars in order to make sure these establishments pay their licensing fees. Similar to these practices, rights owners have recently employed monitors to watch Twitch streams for music rights violations. I am unaware of any that have taken legal action in regards to live streamed content, but the ever watchful eye of the music industry is aware of live infringement.
- I can use copyrighted material if it is under 10 seconds
I see this one quite often on Reddit with many variations including 8, 5, and 3 seconds. Regardless of the time limit, there is no temporal threshold for copyright infringement. The amount you can copy without permission is very contextual. Courts have multiple tests to determine if a copy amounts to infringement but the general concept is based on substantial similarity to copyrightable parts. For example, if a few notes in a song are distinctive enough, just copying those few notes is enough for infringement.
This misconception might also be due to a mix up between infringement and the fair use defense. Fair use also has no set defined amount someone can copy, but it does limit the copying to what is necessary for the intended use. Again this is a very contextual analysis. If someone intends to critique the whole work, they may be able to use most or the whole work, but on the other hand even a small segment of the work is infringement if it is irrelevant.
Music Alternatives
- Monstercat and Pretzel Rock
In my opinion, the most reliable way to play music on stream is to use services like Pretzel or Monstercat. Pretzel is a free service that allows for streamers to use Pretzel’s catalog on Twitch and Youtube; whereas, Monstercat is a subscription service that allows for the same. Note that these services are different from music streaming services like Spotify or Apple Music. With Spotify and Apple Music, you probably own a personal license which limits the use of that streaming service. There are also commercial versions of music streaming services, but those only gives rights to play music within commercial settings and not to broadcast music through stream. The drawback to these services is the limited catalog. You will not find many radio chart toppers in these services.
I like these services because they are specific and the streamer can understand what they are getting. With Pretzel Rock, their license covers a wide breadth, while Monstercat, though having a more specific license, covers most of what a streamer would normally need on Twitch. In music licensing there are multiple types of licenses to correspond to the different parts of a song and what the license will allow the licensee to do with the copyrighted work. At the time of this writing, the legal community is still not in agreement which of these licenses would be needed to fully cover streamers. Therefore, a licensor specifically dealing with Twitch and Youtube can cover many broad aspect that may be lacking with getting one type of license over another.
- Licensing
This is the safest way to play music on stream – sort of. Though a direct license from a rights holder is permission to use a song, it comes with many high hurdles for the average streamer. Firstly, as stated earlier, there are many types of licenses that may apply: public performance, sync, mechanical, and master use licenses. You may need one or more or even all of these licenses depending on how you use the music. Furthermore, most times these licenses are managed or owned by different parties, which makes getting all the appropriate licenses even more difficult. Secondly, this can be very costly to a streamer, especially for something just for background music. Normally, these rights are offered in catalogs by the different rights holders and each type of licenses can cost a few hundreds to thousands of dollars. At the time of writing, Twitch has reached an impasse with music licensing negotiations for a sitewide license, while Facebook has announced a deal to allow partner streamers to use copyrighted songs as background music.2https://www.facebook.com/fbgaminghome/blog/making-music-and-streaming-easier I have not personally inspected the song library, but Facebook has cited to work with many of the major music labels.
However, if something is not included in the catalog that are offered by rights holders, the streamer will have to hunt down the appropriate owners to get these license. Not only is this a difficult task sometimes, it will have to be done with each type of license and to each song individually. Another hurdle is when a content creator obtains rights through another content creator. It is the industry culture to allow sharing amongst other content creator, but these agreements are usually done through a twitter DM or an oral agreement. I have had clients come to me explaining how they have obtained permission to use a particular song, but after a couple years they received a DMCA notice. It turns out some content creators sold their rights to their song to another entity and those friendly oral agreements were no longer honored by these new rights holder.
- No music
This might be a shock to some, but viewers usually don’t watch streamers for their background music, they are there for the streamer. A simple resolution to the music copyright problem is to just not have any background music.
Remember playing music without the appropriate permission can lead to legal liability. You do not want to risk your channel being terminated, especially when many platforms will terminate a channel once they receive three valid DMCA notices. Whatever you choose to do, whether it be to subscribe to a service, obtain your own license, wait for your streaming platform to acquire licenses, or just forgo music altogether, remember that your viewers watch your stream for you and your content, not your background music.