Gone are the days of Napster and Kazaa. Those sites are now archaic, but their popularity opened up a chasm of legal issues surrounding music pirating and synching. Song and lyric rights are contentious subjects, with copyright infringement costing some video-makers hundreds of thousands of dollars.
Music piracy is a confusing and costly issue for many videographers and you can quickly find yourself between a rock and a very costly hard place. For even the shortest of films, music is an important co-star to the scenes we film, an invaluable link to our audience’s emotions and memories.
As online filmmakers, we usually do not have the budget of a company like Volkswagon that has the resources to license the rights to a song like Bob Marley’s “Come On Get Happy.” Big names pay big dollars for these songs for a reason: they have an impact on consumer habits, including brand loyalty and identification. So, how do you navigate the legalities of using music in your videos?
If you find yourself questioning whether or not to use your favorite Journey song in the background of your video, the best rule of thumb is to simply walk away. Consider that nagging internal debate to be your intuition kicking in.
However, on the other thumb, another good rule is to understand fair use and copyright laws. Let’s start with some basic definitions:
: a legal doctrine that states portions of copyrighted materials can be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner (Merriam-Webster.com).
: the exclusive, legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work) (Merriam-Webster.com)
: license granted by a copyright holder giving an individual permission to “sync” a particular song with a video, film, video game, TV show, or advertisement. Royalties are then paid to copyright holders depending on the specificities of the agreement. To obtain a synchronization license you need permission from the following:
- The writer or party/publisher representing the writer who is responsible for the composition
- The owner of the studio recording, usually a record label, who has rights to the master sound recording
These definitions can appear clear, but in the age of the Internet, these meanings can turn into a veritable Pantone pallette of grays. Fair use is a particularly gray shade of gray. According to basic fair use practices, songs can be synched with videos if the video is intended for educational purposes (the rationale being that videos intended for educational use will not be used for profit) or if the copyrights have expired. Again, the Internet complicates this delineation – once a student or teacher posts their video online, they lose some degree of control over the original educational purposes of that video.
“What about all those songs I downloaded from iTunes,” you might be wondering. Yes, you paid a solid 99 cents to blast that song as loud as you want to, however those 99 cents bought you the right to private use, meaning that song cannot be duplicated or attached to any visual media that you could potentially profit from. As soon as that song is used to sell a cheeseburger, promote your organization, or copied in ANY unauthorized way, you are venturing into the land of royalties. Moreover, hosting sites are also penalized for loading videos that illegally use copyrighted music.
Wedding videographers can find themselves in a particularly difficult situation when clients ask for particular songs to be synched to their wedding videos or photograph slideshows. Who could deny a couple their favorite Matchbox 20 song? Some professionals will agree to use popular songs, purchasing their clients’ favorite sentimental ballad on sites like iTunes, and then include a private use clause in their contract. Again, with the popularity of posting/copying wedding videos to social media sites and business websites, many videographers elect to purchase rights to cover songs, including the costs in their fee.
Even chasing after a song with expired copyrights is tricky. Legal documents tend to have long, jargon-laden paper trails that can easily elude the most thorough filmmaker.
The solution to this persistent issue is not avoiding using music in your online videos. Silence is not golden when it comes to online videos. Here are a few ideas to consider:
Go local. Find a local band in your community that needs some exposure or that is feeling charitable. Featuring the music of artists from your community is a win-win situation. You are getting all the benefits of a well-paired song and they are getting some extra exposure. There are a number of bands that have become overnight Internet darlings because their music was featured in a popular online video. This is a great route to take, but make sure to cover your bases. Draft and sign a working contract, clearly giving permission or indicating that you employed the band for this specific purpose.
Another popular solution is paying for royalty free music libraries or songs. These songs are copyrighted without the need to pay license fees or royalties. The music of these libraries varies from poorly produced covers or songs that sound vaguely like a Beatles song to original stock music. Royalty free music can still present a videographer with issues, with some sites selling music they do not have the rights to.
Finally, you can fire up the synthesizer and make your own soundtrack. There are many user-friendly sites, free downloads, and apps out there that can turn a sweet little synth rift into a 5-minute electronic experience.