Music licensing
Music licensing is the licensed use of copyrighted music.[1] Music licensing is intended to ensure that the owners of copyrights on musical works are compensated for certain uses of their work. A purchaser has limited rights to use the work without a separate agreement.
Broadcasting[edit]
Broadcasting, in the context of music licensing, means the playback of recorded or live music for groups of people beyond what might be normally expected in a social setting. Legal claims are filed frequently against bookstores, bars, and live music venues that broadcast music without first obtaining a performance license.
The music broadcast in grocery stores and elevators is a service purchased from one of many organizations that offer it (the largest is Muzak). Part of the fee paid for the service is used to cover licensing costs. Except in very narrowly defined circumstances, noted below under the "small business exception" in 17 USC 110, a business, restaurant, or store that plays radio broadcasts or shows television programs in the premises does not pay a licensing fee.
Radio stations pay fees to licensing bodies for nonexclusive rights to broadcast music. Radio stations and businesses typically pay a flat rate once a year, called a blanket license, which can vary based on the size of the audience, value of the advertising revenues, and amount and nature of music usage. As part of the license contract a radio station may conduct periodic audits of the music being played, with the audit results submitted to the licensing bulk.
Broadcasting pre-recorded music at live events at outlets larger than stores or restaurants, such as stadiums, arenas, or parks, is covered under United States Copyright Law through a "blanket license" that obtained from one of the performing rights organization (PRO), such as BMI or ASCAP. These are compulsory licenses that are held by the PROs, and typically offered based on a per-attendee cost per song, paid to the PRO, which then distributes the royalties to the artists.[8]
In 2012, both BMI and ASCAP introduced a new type of blanket license for political-based events such as campaign rallies called a "Political Entities License". While similar to the blanket license for broadcast of pre-recorded music at large public events, it gives the artists the ability to disallow the use of their music for specific political functions.[9]
Home media[edit]
Licensing issues are encountered when TV shows or films using copyrighted music are released on both DVD and streaming formats.
When a song is cleared for usage on a TV show, historically to save money, the clearance typically applies only to TV airings of the show in question. Thus, when the show is considered for DVD distribution to the home video market, the rights to the song must be renegotiated in order for the song in question to be included on the DVD. Most producers/production companies now include the rights for DVDs or "all media now known or hereafter devised," which assures production companies of the right to re-release without incurring additional licensing fees.
If the process of clearing the rights to the song is prohibitively expensive for the home video distributor, or clearance is rejected by the copyright holders of the original song, the affected song is either replaced with a similar one (such as a rerecording or a generic soundalike), or the footage containing the copyrighted song is edited out. In a few cases, TV shows, with extensive use of copyrighted music whose cost of "after-market" licensing is high, are withheld from release on DVD; notable examples include The Wonder Years, Murphy Brown, Happy Days, WKRP in Cincinnati, Third Watch (beyond its first two seasons), Cold Case, Popular and MTV's Daria, some of which were eventually released after long delays.[10] Sony Pictures Home Entertainment cancelled the planned October 2007 DVD release[11] of Dark Skies for that reason, but it was finally released on January 18, 2011 (4 years later) through Shout! Factory.[12]
Live performance[edit]
Live public performances of musical works are typically licensed in the United States, as "public performances" is one of the six "exclusive rights" listed in 17 USC 106. In the U.S., the owner of a bar, cafe, or restaurant who wants to have live music played in their establishment, commonly obtains a blanket license from ASCAP & BMI to play copyright music listed in their catalogues. Because ASCAP, BMI, Pro Music Rights,[13] and SESAC have non-overlapping collections, a license from one entity does not provide a license to play music from the other entities.[14]
The Association for Concert Bands (ACB)[15] offers a blanket license to community bands that covers both ASCAP and BMI lists. At the end of the year, a community band completes a spreadsheet showing how often each song was played during the year, which the ACB submits to the rights organizations.
Public performances of works in the context of dramatic works are separately licensed; these licenses are called "grand rights".
Highly publicized music licensing incidents[edit]
"Happy Birthday to You"[edit]
The song "Happy Birthday to You" is one of the best known songs in the world and generated over $2 million in royalties each year for Warner/Chappell Music, until September 2015, when a U.S. judge ruled that Warner/Chappell could not prove that it held a copyright to the song. On February 8, 2016, Warner/Chappell Music agreed to settle a class action lawsuit brought to challenge these fees. After mediation, Warner's payments would total more than $14 million to the "thousands of people and entities" who had paid licensing fees to use the song since 1949, plus $4.6 million to attorneys for the plaintiffs.[36]
ASCAP and Girl Scouts[edit]
In 1995, the ASCAP (the American Society of Composers, Authors, and Publishers) ordered The American Camping Association to pay royalties for campfire songs sung at any of their 2300 camps, including popular singalong songs "Puff the Magic Dragon" and "This Land Is Your Land".[37] ("This Land Is Your Land" was later determined to have been in the public domain since 1973.[38]) Girl Scout camps were included in the request, but only a small number of Girl Scout camps actually paid the $250 agreed upon yearly fee. The New York Times reported, "Among the 256 Girl Scout camps on its list, 16 [paid]."[39] In March 1996, ASCAP sent letters to the Girl Scouts to pay copyright fees for campfire songs written or published by ASCAP sung in "public performance."[40] ASCAP expected to be paid license fees for any of the 4 million songs included list sung publicly.
In August 1996, The Wall Street Journal published a frontpage article, "Ascap Cautions the Girl Scouts: Don't Sing 'God Bless America,'" describing the scene at Diablo Day Camp in Lafayette, California, as a troop of Girl Scouts danced to the Macarena in silence for fear of copyright infringement.[37] The video performance of Girl Scouts silently dancing made its way onto mainstream news, bringing attention to ASCAP's demands. ASCAP deemed the Girl Scouts to be engaging in "public performance[s]" of the copyrighted works. Public performances are defined in Section 101 of the Copyright Act as a performance "where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."[41]
ASCAP quickly sent a press statement claiming that it never intended on receiving royalties and has never brought nor threatened to bring suit against the Girl Scouts.[37] ASCAP promised to reimburse any Girl Scout camp for the royalty fees that they may have paid. It was also reported that "in 1940 Irving Berlin had donated all future royalties from "God Bless America" to the Girl Scouts and Boy Scouts."[37]
By September 1996, Girl Scout executives in New York said they believed "this unfortunate situation is resolved."[40]