This entertainment attorney loves her musician clients, I really do. As a former rock journalist and photographer they are some of the most down to earth people you will ever want to meet……….until they get a Top 10 hit and then they won’t take your calls. Anyway, their stock in trade is their music. That’s how they earn a living and when you use that music without paying for it, you are literally stealing from them. That includes posting videos on your blog or website from Youtube.com.
Just because they are on Youtube does not mean you are authorized to use them, especially those “tribute” videos of sappy montages which fans have compiled to feature their favorite song. Rip-off – literally! The Copyright Act contains what is called a “fair use” provision which allows journalists to use a “fair” portion of a copyrighted work for scholarly discussion, criticism, news reporting, teaching and research. Yet, the law does not define exactly how many notes or seconds of a song you may use without infringing on someone’s copyright. That’s always been a gray area. Further, acknowledging the source of the song does not equate to getting a license or permission so don’t think you’ve covered yourself in that manner.
I know many indy artists and major record labels post videos on YouTube to garner attention and one could make a good argument that by placing them out there in the ethers the copyright owners are making them readily available for “free use.” However, try to use those same videos for free and watch the goliath of the music industry crash its sword upon your head. You may not hear about it and you may think your little blog is safe, but you are being watched.
And you should know that there are two copyrights to worry about here – the copyright of the composition itself and the copyright of the recording of that song. If you are using the exact recording of Maroon 5‘s new album, you have to worry about the publishers, the composers and the record label all owning a copyright interest in that recording or video. So, what happens if you’re a cover band and you videotape your own version of the Black Eyed Peas‘ “I’ve Got a Feeling” and post that on your website? Well, the question becomes whether that would qualify as a public performance of the tune? Under the performance right, which is retained by the copyright holder, a work is said to be performed publicly if it is performed in a place where a substantial number of people outside of your family and normal social circle would see it. I would say most blogs would then qualify as a public platform. True, you can use a snippet as a parody under the Act, but that also has its own qualifications and I will write about that here soon.
I cannot sit here and tell you that you are safe in using 10 seconds or 45 seconds of “I’ve Got a Feeling.” There is no bright line measurement. Bottom line is “blogger beware.”
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Fee to join ASCAP – $35;
Mechanical royalty under the Act – 9.5 cents of 1.75 cents per minute of playing time or fraction thereof, whichever is greater;
Having a cover band whose members belong to ASCAP call and ask me why they can’t post performance videos online – priceless!