David Oxenford - Color

David Oxenford

By: David Oxenford,
Wilkinson Barker Knauer LLP

Last week, the NY Times ran an interesting article, here, about how many old TV programs now available on streaming services are missing music that was featured on the original broadcast.  This was because when the music rights were initially purchased,  their use was limited to over-the-air broadcasts or was limited to a short period of time, with the producers never envisioning that the programs would be available through on-demand streaming services decades after they originally aired on over-the-air television.  While not mentioned in the article, for many radio broadcasters one of the series most missed on streaming services is the industry favorite WKRP in Cincinnati.  That series took forever to get to digital outlets, and still does not appear to be on any subscription streaming service, reportedly because of music rights issues.  This article and the issues that it highlights should be a warning not just to TV producers, but also to anyone planning to use music in audio or video productions – including podcasts and online videos – that clearing music rights is essential to insure that these productions can be fully exploited  not only when they are first made available, but also in the future if they are repurposed for other platforms.

We have written before (see, for example, our articles here and here) about the need to get permission from the copyright holders in both the musical work (or musical composition – the words and music to a song) and in the sound recording (or master recording – the song as recorded by a particular band or singer).  Just signing up with a performing rights organization (ASCAP, BMI, SESAC or GMR) is not enough because, while podcasts may involve the public performances of the musical works that these organizations license, they do not give rights to make the permanent fixed copies of those songs, synchronized with other audio in the podcast, that can be accessed and downloaded on demand.  These uses require the additional copyrights to reproduce and distribute music, and arguably to make derivative works, that can only be obtained from the copyright holder (see our article here describing why the PRO license itself does not give all rights needed to use music in podcasts).   Similarly, the rights to the sound recording must also be obtained from the copyright holder in the recording – and payments to SoundExchange do not cover the on-demand music uses involved in a podcast.  Thus, when the necessary rights are not obtained from the copyright holders, we have seen podcasts go silent after infringement claims are brought or threatened (see our article here).

The same issues apply to any video production using music.  The rights discussed above must be obtained from the copyright holders to “sync” the music and the video into a recorded, on-demand production.  See our articles here and here.  While some platforms (like YouTube and their Content ID system) have entered into deals with some copyright holders that allow use of certain music in videos posted on their site in exchange for a share of any monetization of that video that may occur on the site, those rights do not carry over to the video’s producer if that producer wants to take the program containing the music and use it on other platforms.  Spotify also has made available certain music to podcasters who podcast on their platform – but only when the podcast is originated to the user through the Spotify platform.

The need for copyright clearance  also applies to the use of  music in the production of commercials or other advertisements that  air on a broadcast station or online platform.  Musicians charge for the use of their music in these settings , and  your blanket licenses discussed above do not give you rights to use that music in your productions. See our article here for more information.

To avoid these traps, audio and video producers often will obtain rights to less well-known songs that copyright holders are willing to license at reasonable rates.  Some platforms have sprung up to facilitate such licenses (e.g. PodcastMusic.com or Songtradr are, respectively, platforms for licensing music for podcasts or videos – they are among many platforms seeking to fill this need).  Some producers commission their own music.  Sometimes, the rights to the musical composition can be licensed but not the sound recording, so another artist will be hired to perform the song to be used in the production.  All are work-arounds that must be considered to avoid the potentially unpleasant consequences of an infringement claim against a current use, or the denial of a future use because the rights that have been secured did not cover the way in which that production is intended to be used in the future.  Proceed with care!

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership. 

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