On September 21, 2021, Twitch and the National Music Publishers’ Association (NMPA) announced a deal to create an alternative copyright enforcement system different from Twitch’s DMCA enforcement. This article is not about the efficiency of such policy, rather, it is to clarify some legal misunderstandings I saw from the responses. Many, including news outlets, hyped the negotiations as an end to DMCA and were vocally disappointed when that was not the case. It was doubtful that any deal brought forth by these parties would allow streamers to play music on stream just from the fact that not all rightsholders were represented. The NMPA represents publishers who generally have the composition rights to a song, but the record labels, not represented in the above mentioned deal, own the sound recording rights. The rest of this article will explain the difference between the two rights and the licenses involved to use a song.
TWO PARTS TO A MUSIC COPYRIGHT
It might surprise many, but a music copyright contains two distinct types of rights. These rights can be owned by a single person or multiple people. Firstly, there is the copyright of the music composition. Composition itself can be broken down to the melody and lyrics of the song. The songwriter and/or publisher usually owns the composition rights, but in some instances the melody and lyrics can also be owned by different parties. When the melody and lyrics have different rightsholders, they will share a 50/50 split in composition royalties unless otherwise contracted. Whenever a content creator use any part of the composition, including karaoke and covers, they must get a license to do so.
The other part of music copyright is the sound recording. This is basically the recording of a specific performance of a composition. This may or may not belong to the same owner as the composition rights, but is generally owned by the performer and/or the record label. Whenever a content creator use any music performed by another person, they must get a license to do so.
MUSIC LICENSES
Now we know there are two parts to music copyright, we need to figure out what type of licenses are needed to use either or both parts of the copyright. Generally, a content creator will be focusing on four types of licenses that grant specific usage and each of these licenses are obtained differently and pay different types of royalties to their owners.
Master Use License
Also known as a master license, this is an agreement to use a copy of a specific recording. This includes using a recording in part or as in whole. It includes, but not limited to, playing a song in the background of a video, using part of a song as backtrack, or creating remixes and mashups. Master licenses pay royalties to the owner of the sound recording and are typically obtained individually from the owner. Since there aren’t standard prices for master licenses, owners are free to charge whatever price they want — typically the more popular the song, the higher the price. Some recordings can be so expensive that a typical content creator might not be able to or want to pay for a master use license. A often used work around to paying for high fees is to create a sound alike. Though the mechanical or sync license (see below) will have to be paid, a less popular performer might result in cheaper fees; or, recording your own performance to eliminate the master license entirely.
Mechanical License
A mechanical license gives permission to use a composition in an audio-only form (CDs, digital downloads, certain types of audio streams). Commonly this type of license is used for creating cover songs when a creator includes any portion of a composition in their own recording. Even though royalties from mechanical licenses go to the copyright owner of the composition, obtaining these licenses do not require the express permission from the owners. There are a few ways to obtain the license; a creator can ask the owners directly or through an agency (usually the Harry Fox Agency). If for whatever reason you cannot obtain the license by permission, copyright law can create a compulsory license after jumping through some administrative hurdles.
Sync License
Similar to a mechanical license, a sync license is permission to use a composition, but the sync license differs in that it applies to video content. Typically used when creating commercials, television shows, film, visual advertisements, and in regards to this blog, VODs and Youtube videos. Also similar to a mechanical license, royalties from these license will be paid to the composition rights holders; however, unlike a mechanical license, it isn’t compulsory. The owners to the composition are free to control the cost and determine what kind of videos can associate with their composition. Much like the master licenses this can lead to high cost for popular compositions, but whereas a creator can hire sound alike to bypass master licenses, the sync license must still be paid.
Public Performance License
Content creators might not be aware of this license. Copyright law gives owners of music composition the right to perform, show, or broadcast their work to the public. A public performance has specific legal implications, but a rule of thumb is anyone outside of a normal circle of friends and family should be considered public. Performing rights for sound recording are more specific as it only applies to “digital audio transmission” such as digital radio. Traditionally, singers and bands would have the venue pay for the license; similarly, platforms like YouTube, Facebook, and Twitch have claimed they maintain public performance licenses for their content creators, but the terms and limitations to many of these licenses are not very conspicuous. Creators can also purchase their own licenses from performance rights organizations (PROs) such as BMI, ASCAP, and SESAC. Much like the other rights, the cost of these licenses are set by the rightsholders.
CONCLUSION
It is my hopes that breaking down the difference licenses to music copyright will help creators learn what they need in order to safely and legally use music in their content. Far too often I see creators try “this” workaround or “that” set up to avoid copyright strikes, but a simple checklist for licenses could easily help analyze the situation. Lastly, if there is still confusion about using music in your content, consult an attorney. It is better than receiving DMCA notices and potentially being banned from a platform.