Music Publishing

Music and Podcasts: How Do I Clear The Music Rights For My Podcast?

Music Rights and Podcasts How Do I Clear The Music Rights For My Podcast? #createprotect attorney-Tamera-Bennett

Media and music lawyer Tamera Bennett presented Legal Issue of Podcasting with attorney Gordon Firemark. You can watch the CLE at TexasBarCLE.  You can listen to the CLE as part of the Entertainment Law Update Podcast. Below is an excerpt from the CLE materials on Music and Podcasting.

Music Issues In Podcasting

Podcasting’s closest relative in the media world is traditional terrestrial radio.  A typical podcast may have the feel of a talk radio show. Podcast topics run the gamut from news, sports, health, the law, politics, religion, technology, entertainment and much more. Like talk radio, music can play an integral part in the feel and a presentation of a podcast. The podcast might be solely focused on music such as a “count down” of this week’s hits, or music may be a little “icing on the cake” for transitions during the podcast.

Just like the podcast is protected by copyright, so are any songs or sound recordings that you may include in an episode of the podcast.

Exclusive Rights of Copyright Owner

The owner of a copyright has a bundle of exclusive rights:

  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.  17 U.S.C. § 106.

These rights can be licensed by the copyright owner individually or as a whole; exclusively or non-exclusively.

Song Copyright and Sound Recording Copyright In Podcasts

Whether you’re talking intro and outro bumper music, or a whole podcast dedicated to music, you have to understand the different rights attached to a music copyright along with the different music licenses that may be involved.

When discussing the music and who owns what rights, it's important to note that there are two copyrights involved in each musical recording. 17 U.S.C § 102.  The copyright that attaches to the song covers the words, music, and the arrangement. Sound recordings are defined as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” 17 U.S.C. § 101.  The song copyright is owned by the songwriter or a music publisher who was assigned the copyright.  The copyright in a particular version of a recording is owned by the artist or record label who was assigned the copyright. 

As an example of the difference between owning the song copyright and the master/sound recording copyright, recall that Dolly Parton is the songwriter of the hit song “I Will Always Love You.” Neither Dolly Parton nor the music publishing company that owns the song copyright for “I Will Always Love You,” have any ownership in the sound recording copyright for the version of the song recorded by Whitney Houston for the movie “The Bodyguard.” Nor does the record label or Whitney Houston’s estate have any ownership in the song copyright.  The song and the sound recording are two distinct copyrights with different owners.

Streaming vs Download For Music In Podcasts

Because podcasts can be delivered to consumers in two different manners - streaming or download – multiple rights are triggered and need to be licensed. These multiple rights and licenses apply separately and distinctly to the song and sound recording.

Songs – Musical Compositions In Podcasts

A song copyright encompasses the words, music, and the arrangement. The copyright owner of a song has an exclusive right to license the public performance of the song as well as the mechanical reproduction of the song. A public performance of a song occurs when it is streamed as part of the podcast. This is analogous to listening to the song on the radio.  If the podcast can also be accessed by download, the exclusive right of reproduction – or mechanical right – is also triggered.  In traditional media, we think of a mechanical license being needed when a music compact disc or music download is purchased.

What does this mean for the podcaster who wants to include music in her podcast? In short, if the podcast can be consumed by both streaming and download, the podcaster needs both a public performance license and mechanical license whenever a song or a portion of a song is included in the podcast.

Public Performance Right For Songs In Podcasts

A public performance of a song occurs when the song is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet.

In the United States, we have three major societies that collect all of the public performance payments for the various different licensees of music. Radio stations, TV networks, and nightclubs are a few of the types of businesses that publicly perform music and need a license.  What is nice about the public performance licensing scheme is that you can secure a blanket license which will allow you to publicly perform all songs in the performance right society’s catalog. You don’t have to go back for individual song licenses.  If you have a variety of music in your podcast and are unable to limit your music selections to those licensed by one performance rights society, you will need web licenses from ASCAP, BMI and SESAC.  While license fees will vary, you can estimate a minimum annual license around $300.00 for each society.

Most podcasts are embedded or streamed from a blogging or website platform. When you go to license the rights for public performance in the United States, the licenses are not typically named a “podcast license.”  At www.ascap.com the licenses are labeled for “website and mobile apps.” Search www.bmi.com under the “digital licensing center.” And, search www.sesac.com for “internet licensing.”

Mechanical Reproduction Right of Songs In Podcasts

Potentially two different mechanical uses are triggered when a podcast is accessed. If a podcast that contains music is downloaded, a permanent digital download (PDD) occurs with each individual digital delivery transmission resulting in a reproduction made by or for the recipient which may be retained and played by the recipient on a permanent basis. PDDs are sometimes referred to as full downloads or untethered downloads.  Even though the song is part of and incorporated into the podcast, the use is considered a PDD and requires a mechanical license and mechanical royalty.

The second mechanical right is triggered by interactive streaming. Streaming means listening to the podcast (which contains music) in real time, instead of downloading a file to your computer or mobile device and listening to it later.  There are two types of streaming: interactive and non-interactive. Streaming of content is considered interactive, or on-demand, when the listener can request the specific recording they wish to hear and the digital file is transmitted electronically to a computer or other device contemporaneously with the user's request.  17 U.S.C. § 114(j)(7).  Because the end user can control when they stream the podcast, the action is considered interactive. Other examples of interactive streaming include services such as Spotify, Beats Music, Google Play Music All Access, and Xbox Music.

Both the PDD and interactive streaming of the songs require a mechanical license. Does it matter how much of the song is used? Probably not. Unless the podcaster is able to fit within a fair use exemption for using the song, a mechanical license will be required. (See 17 U.S.C. § 107 for more on fair use). The leading collective for securing mechanical licenses is the Harry Fox Association (HFA). It is very important to realize that HFA does not have the rights to every song that a podcaster might want to include. Unlike a public performance license, there’s no ability to secure a blanket license for the podcast. Individual licenses must be secured for each song. Visit “digital licensing” at harryfox.com for more information on mechanical licenses for songs in podcasts. Because HFA does not have the rights to license every song, the podcaster may have to contact individual music publishers for the rights needed.

The current mechanical rate for a PDD is 9.1 cents per song per download. The rates for interactive streams are determined by a number of factors. These include service offering type, license type, service revenue, recorded content expense, and applicable performance royalty expense. 

Keep in mind the rights, licenses and rates are only for the United States. Each country has its own licensing procedures. As an example, in the UK and Australia, podcasters can license the public performance right and mechanical rights from a single organization in each respective country.

Sound Recordings or Master Recordings for Music In Podcasts

If securing the rights for the song wasn’t tough enough, a podcaster must also secure the rights for the version of the song – the recording – she wants to use. Performing the song in the podcast is a “digital audio transmission” of the sound recording. 17 U.S.C. § 106(6). With the master, two different rights are triggered.  A digital public performance right and a reproduction right – more commonly known as a master use.

A podcast is considered an interactive stream because the consumer can select when they play the podcast. A podcast is not the same thing as internet radio. Internet radio is non-interactive meaning the user cannot choose the track or artist they wish to hear.  The Digital Performance in Sound Recordings Act of 1995 created a statutory license for subscription-based, non-interactive digital audio transmissions.  17 U.S.C. § 114.  In 1998, Congress passed the Digital Millennium Copyright Act, which expanded the statutory license to include non-subscription, non-interactive digital audio transmissions.  License fees for non-interactive uses are pre-determined by a rate determining body called the Copyright Royalty Board, are non-negotiable and paid by the internet radio stations, webcasters and satellite radio stations to SoundExchange (the entity designated to collect the royalties) as a digital performance royalty. 37 C.F.R. Part 380.

You need to understand that SoundExchange cannot help you license sound recordings for a podcast.  In fact, SoundExchange states the following:

Interactive streaming and downloads: In addition, the statutory license administered by SoundExchange does not cover interactive streaming or downloads of any kind, including downloadable “podcasts” of archived programming. If you are offering podcasts that include sound recordings, then you may need to obtain a direct license.
— SoundExchange Memo to All Commercial Broadcasters dated Nov. 21, 2014

Because of the interactive nature of on-demand services, there is no statutory scheme or Copyright Royalty Board determining licensing rates.  The on-demand services must secure direct sound recording licenses from the owners of the sound recording copyrights in order to stream.  Royalty rates for on-demand services are negotiated between the sound recording copyright owner and the podcaster.

What does this mean for the podcaster? It means you have the obligation to secure a direct license for each sound recording that is in an episode of a podcast. You will have to negotiate direct licenses that will cover the digital public performance right and the reproduction/master use right. There are some companies that provide clearing house licenses for interactive sound recording uses. While I do not endorse or recommend any particular services, MediaNet (mndigital.com) is used by many large interactive streaming services for clearing popular music rights.  Their pricing may or may not be practical depending on the reach and scope of your podcast.

Possible Solutions For Music In Podcasts

Don’t give up hope yet. You may still be able to have music in your podcast.

The easiest solution to using music in your podcast is to secure music from a stock music library that has already pre-cleared all the necessary rights. It’s your job to read the license from the stock music library to determine if you have the rights for a digital interactive public performance of the song, permanent digital download of the song, interactive digital public performance of the sound recording, and master use/reproduction of the sound recording.  Keep in mind, most choices from a music library will probably be original music tracks created for the library. This means, using the latest Beyoncé track is probably not an option.

Another option is to hire musicians to record original music and sound recordings for you. Again, you need to secure in writing all of the appropriate rights.

You might also hire musicians to re-record some popular songs for you. Make sure you secure in writing the ownership and all copyrights in the re-record. In this situation, you would only need the public performance licenses from ASCAP, BMI and SESAC; and mechanical licenses from HFA.  By re-recording the popular songs, you’ve eliminated the need for any negotiated licenses for using the original sound recordings.

If you're interested in more hot topics in podcasting legal issues, visit the Google+ Community hosted by Tamera Bennett and Gordon Firemark.  Also, subscribe to the Entertainment Law Update Podcast so you don't miss any updates.


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Texas Music Lawyer Tamera Bennett Speaks at SXSW 2016

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Texas music and trademark lawyer Tamera Bennett is honored to join her colleagues Paul Bezilla, Lynn Morrow and Kelly Vallon presenting "Developing An Indie Artist's Career Using Their Money on Others'" on Friday, March 18, 2016 at the SXSW Music Conference.

Here's a link to the materials for the presentation. And you can click the slideshow to the right of this post.

What's The Impact of SESAC Buying Harry Fox (HFA)?

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It's been almost two months since SESAC, Inc. announced its acquisition of the Harry Fox Agency (HFA). The deal, which merges the largest U.S. mechanical rights licensing association with the smallest U.S. performance rights organization, still needs approval by the membership of the National Music Publisher Association.

HFA has always been in the business of licensing and collecting mechanical royalties for each time a record is sold, downloaded or streamed. At one time, that meant when a physical record album was sold. Today, we usually think in terms of when a track is downloaded.

SESAC is the smallest of three public performance rights organizations in the United States. Songwriters and music publishers are members of SESAC. When you hear a song played on the radio or in a club, a public performance royalty is paid to SESAC (or ASCAP or BMI - the two other performance rights organizations).  In turn, SESAC pays a performance royalty to the songwriter and music publisher.

In the U.S., the mechanical rights collection agencies and the public performance organizations have always been separate, until now. SESAC's acquisition of HFA begins to replicate they way mechanical and performance rights have been licensed for years throughout most of Europe.

New media companies that provide streaming and locker services should be rejoicing. The merger should streamline some of the right's clearance processes. Services like Spotify, and the now defunct Grooveshark, provide music to consumers in a way that triggers both a mechanical royalty and a public performance royalty. The merger would allow for some one-stop shopping when it comes to music clearance.

We may also see an uptick in music publishers joining SESAC so the publisher can benefit from centralized licensing. The publisher would still be responsible for issuing other licenses, such as synchronization and print.

BMG Rights Management Buys Hal David Song Catalog

As reported by BILLBOARD, BMG Rights Management acquired Hal David's music publishing catalog at an estimated $42 million.  Net publisher's share is in the range of $3. 5 to $3.8 million and it is anticipated a multiplier of 11-13 times NPS was used to reach the purchase price. Read more here on how Net Publisher's Share is calculated.

Entertainment Law Update Podcast - Episode 47

Film/TV lawyer Gordon Firemark and Copyright/Trademark lawyer Tamera Bennett cover a "Motley Crew" of topics this month including trademark, copyright, film and tv legal issues surrounding the "Counting Crows," "Raging Bull," "Insane Clown Posse," and "Sherlock Holmes" .... to name a few.  Click here to listen.

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Top Trademark/Copyright/Entertainment Law Posts of 2013

As we say goodbye to 2013, it's always fun to look back and see what our readers enjoyed. There's a great mix of trademark, copyright and music publishing cases. Most visited posts in 2013 (no matter original post date):

Number 5:  Johnny Football vs Juanito Futbal Trademark Likelihood of Confusion Number 4:  Do I Need A Music Lawyer? Number 3:  Music Publishing: A Good Investment Number 2:  New Recording Artist Checklist: What Every Artist Should Think About Number 1:  Bikram Yoga Protected by Trademark NOT Copyright - It's Hot

and a little variation on a theme - the Most visited posts that were originally posted in 2013:

Number 5:  Drybar vs Blow Dry Bar - Trademark for Blow Drying Hair Number 4:  Sherlock Holmes, Elementary, Copyright Protection and Trademarks Number 3:  Duck Dynasty - What Contract Clause Did Phil Violate? Number 2:  Johnny Football vs Juanito Futbal Trademark Likelihood of Confusion Number 1:  Bikram Yoga Protected by Trademark NOT Copyright - It's Hot

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Making Money In A Digital Age: Bootcamp On Digital Royalty Strategies

Making Money in a Digital Age:   Maximizing your client's film and music revenues with various digital options available at our fingertips.  Join the Sports & Entertainment Law Section of the Dallas Bar Association for a Boot Camp all about digital distribution for film, music, & television. Learn how to maximize you or your client's film, music, or tv revenues with various digital options available at our fingertips.When: Friday, 18 OCT 2013 at 1:00pm Where: Texas Theatre, 231 W. Jefferson Blvd, Dallas, TX 75208,  214-948-1546$25 for lawyers (MCLE Pending) $20 for non-lawyers

To purchase tickets, please go to: http://www.prekindle.com/promo/id/22815447475413408

Music PanelistsSteven Corn - Los Angeles, California Co-owner with BFM Digital

Andy R. Jordan - Dallas, Texas Music producer for interactive media and documentary films

Lee Mezistrano - Seattle, Washington Lawyer with Starbucks - Digital Ventures

Evan Stone - Dallas, Texas Lawyer with FUNimation Entertainment and Partner at Stone and Vaughn PLLC

Film Panelists

Steven Masur - New York, New York Lawyer, Venture Law Group Cowan Debaets Abrahams & Sheppard LLP

Ken Topolsky - Dallas, Texas Producer, Dallas TV Show

Lise Romanoff - Los Angeles, California Managing Director/CEO , Vision Films

Entertainment Law Update Podcast - Gordon Firemark and Tamera Bennett

Film lawyer Gordon Firemark and music attorney Tamera Bennett co-host the Entertainment Law Update podcast.  Episode 44 highlights include the "Happy Birthday" public domain litigation; Marvel comics copyright termination lawsuit; and Harper Lee's resolution on ownership of "To Kill A Mockingbird."  Read more and listen here.

EMI Entertainment World, Inc. v. Karen Records, Inc. - Who is the right plaintiff in a copyright dispute

EMI Entertainment World, Inc. learned the hard way  that making sure you name the correct plaintiff in a lawsuit is pretty important to winning. EMI sued Karen Records, Inc., Karen Publishing, Inc. and the owners of these entities for copyright infringement and won a $100,000 verdict.

Too bad EMI did not listen to Karen's attorney and verify who actually owned the copyright in the songs/sound recordings that were infringed by Karen. Because EMI refused to join in the lawsuit one or more of EMI's subsidiaries as the proper party and owner of the copyrights, the case was dismissed by the judge for lack of jurisdiction.  EMI did not have standing to file the suit on behalf of the EMI subsidiaries.  EMI was notified of this potential deficiency in the lawsuit and refused to fix the problem.

Copyright litigation practice tip -  Name the actual copyright owners as the parties to the lawsuit. EMI won, but actually lost.

Here's a link to the Opinion.

"When The Band Gets Divorced - Mediating The Band Partnership Dispute"

"When The Band Gets Divorced - Mediating The Band Partnership Dispute"1 hr CLE pending

Join attorney/mediator Tamera Bennett at the Belo Mansion at Noon on Wednesday, March 27, 2013 for a discussion on common issues band members mediate when a member departs and/or the band dissolves.

We'll be taking a look at the "Sugarland" partnership dispute, the recent "En Vogue" dispute, as well as the "J Geils Band" dispute and applying those fact patterns to structuring a successful mediation for your client.

Dallas Bar Association Belo Mansion 2101 Ross Avenue Dallas, Texas 75201 214-220-7400

Will Play for Tips: Legal Tips for Musicians/Artists/Songwriters at 35 Denton

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SATURDAY, MARCH 9TH at 35 Denton3:00 PM – 4:30 PM (UNT on the Square)

Will Play for Tips: 5 Legal Tips for Musicians/Artists/Songwriters

Join the Dallas Bar Association Sports & Entertainment Law Section for a panel presentation on March 9 from 3:00 PM – 4:30 PM at UNT on the Square, 109 N. Elm St. Denton, TX 76201.This introduction to legal issues in the music business panel will help you answer questions such as Who owns my song? Do I need a lawyer? How do I protect my brand? That's "fair use," right? and Can't we all just get along? Join us for a discussion covering copyright law, trademark law, business structure for the band and other music business legal basics.Participants in the panel include:

Tamera H. Bennett

, Bennett Law Office, PC/Farm to Market Music, LLC; 

Catherine Hough

, Ferguson Law Group;

Evan Stone

, Law Offices of Evan Stone;

Kevin Harrison

, Kevin Harrison Law.

Free and open to the public. 1.5 hour MCLE pending.

Copyright Renewal Vests in Sony not Roger Miller's Heirs

For works published or copyrighted prior to January 1, 1978, the sixth circuit court of appeals made a landmark decision holding the copyright renewal term vests in the music publisher when the author dies during the twenty-eighth year after copyright was secured -- the last year of the fist copyright term. The history of the case can be found here and here.  Miller's heirs have been in a litigation with Sony Music Publishing for years over who owns the songs that Miller wrote in 1964.  Miller died in 1992, the 28th year after writing songs such as “King of the Road” and “Dang Me.”

It takes a family with assets to pursue litigation to trial, appeal and back again.  The Miller estate has helped to clarify, at least in the sixth circuit, an unanswered question in copyright law.

Read the opinion here.