Social distancing, self-isolation and sheltering in place – welcome to 2020. As everyone tries to do their part to flatten the curve, many creative professionals and small businesses are being forced to move parts of their business to streaming and on-demand video. Networking events, client presentations, webinars, and professional education will be remote for the foreseeable future. Services like YouTube, Facebook Live and podcasts are great for this arrangement. But while adapting to the technical and creative challenges of online video is important, one thing that is often misunderstood is how or even whether you can legally use copyrighted works – like music, video clips, and photos and graphics – in your new creations. Incorporating these in a video or podcast is legally different from using them in person, and you need to make sure you have the right permission to do so.
THE RIGHT COPYRIGHT RIGHT
Let’s take a quick step back. What we consider a copyright is actually a collection of several different rights, what copyright lawyers often analogize as a “bundle of sticks.” Each stick represents the exclusive right to do something specific with regard to the work. For example, one “stick” is the exclusive right to publicly perform a work, and a different “stick” is the right to make copies.
What’s important to remember is that, although these rights come in a bundle, each stick can be sold or licensed separate from all of the other sticks. That matters because many licenses only cover one or two of the sticks, not all of them – so the license you have to use music or a photograph in your live presentation, for example, may not include online streaming or recorded video.
When you are using creative works live, in-person, this usually falls under the public performance right. However, embedding music or images into video or audio, whether live-streamed or recorded for playback, involves a completely different right, the right to make “derivative works.” You need to make sure that you have a license for derivative works, not just public performance, or you need to switch to works in the public domain.
MUSIC
As I’ve written about before, recorded music actually contains two different copyrights – the rights to the composition held by the song’s writer(s), and the rights to the sound recording, usually held by the record label. You can’t integrate a recorded piece into your video or audio without permission to use both. Traditionally, the rights to the composition are called “sync rights” (because you are synchronizing the music with the video) while the rights to the recording are called a “master” license (because you are licensing the use of the master recording, as opposed to the composition).
Businesses that play music in public spaces should already have performance licenses. But those are public performance licenses, and typically don’t cover using the same music in videos or recorded audio like podcasts — even live-streamed videos from your business in which that music is just playing in the background as you record! In addition, through a quirk of copyright law, sound recordings didn’t traditionally require public performance licenses, but they are required for derivative works, so an ASCAP or BMI license, for example, may not deal with the recording at all.
Obtaining sync and master licenses used to be a problem reserved for the film and TV industries, but with the rise of YouTube and Twitch, several licensing companies are stepping up to provide user-friendly ways of obtaining the right licenses or royalty-free alternatives, including some options specifically designed for use in video streaming. Alternatively, use music in the public domain (a list can be found here) — but you need to make sure that both the composition and the master recording are in the public domain. If someone records a new cover of an old song, that new master gets its own copyright.
VIDEO CLIPS
Getting permission to use video clips from anything other than public domain works can be expensive and difficult, if only because there are fewer companies and societies to work with to get the right permission from the right owner. Unless you plan on relying on fair use – and there are legal and practical problems with doing so (see below) – you should be extremely cautious in using any video clips that you don’t create yourself, obtain from a reputable stock footage company or that you are sure are in the public domain.
PHOTOS AND GRAPHICS
There is a persistent misunderstanding that anything that can be found on the Internet is free to use – and because photos and graphics are so easy to copy from other websites, they are a frequent victim of copyright theft. Unless you qualify for fair use (see below), you absolutely need permission to use an image in your online videos, or you need to stick to images you create yourself or that are in the public domain. If you already obtained a license to use an image for your in-person presentation, (1) good for you, and (2) because licenses for photographs and graphics are often pretty broad, your license may already cover online video. You do need to check, though, and if it doesn’t, either get a new license or pick a new image. There are numerous ways to obtain licensed works for free or for a small fee, including through services such as Unsplash and Gettyimages, or through museums that provide royalty-free digital copies of famous works.
However, be aware that just because the image is licensed, the contents of the image may not be OK to use. Some photographs on Unsplash, for example, are photographs of otherwise copyrighted works. For example, if someone takes a photo of a painting, you may be getting permission to use the photo, but you don’t have permission to use the painting – which means the permission you do have is pretty worthless. The same goes for images that show a trademark or a logo or even a person – unless you have permission from the trademark owner, you can’t assume that the photographer got permission for you.
FAIR USE
Fair use is just as applicable to streaming and video as it is to live presentations. If your video is for educational, non-commercial purposes, there’s a good chance that your use is OK. But, fair use is never black and white. It is a myth that it is “fair use” if you use less than a certain number of seconds of a song or a clip, or if you don’t make any money off of the video. Determining fair use is case-by-case, weighing a number of factors. And moving a presentation online where it can reach a larger audience, or be played on demand can change that calculation, so even presentations that qualified as fair use when done in person are no longer fair use. The bottom line is that you need to do a careful analysis before simply assuming that you’re covered by the fair use doctrine.
PRACTICAL PROBLEMS - COPYRIGHT STRIKES AND BANS
Setting aside the legal and moral issues associated with getting the right permission, there are practical problems to consider when using copyrighted works in online video and audio.
For one thing, your streaming platform is now monitoring what you do. You may have rolled the dice before that your live performance wouldn’t attract the attention of copyright holders, but Facebook, YouTube and other streaming hosts use sophisticated algorithms to monitor feeds for copyright infringements. Once the algorithm discovers that you’re using a copyrighted song, for example, the host may automatically mute or cut off your stream (which probably won’t go over well with your clients or audience), and they may add a copyright “strike” to your account, which can lead to a permanent ban.
If you do have a license, you need to make sure that your streaming platform knows about it ahead of time, otherwise they may assume your use is illegal. Check if the company that you purchased your license from will notify online hosts of your license (and check reviews to see how well this notice actually works). Paying for permission makes little sense if you can’t actually use the work.
Finally, if you’re planning on relying on a fair use defense, be prepared for problems. As a practical matter, Facebook, YouTube, etc. can’t make fair use decisions ahead of time – they will most likely just block or take down your video and maybe let you try to argue “fair use” after the fact to avoid a ban.
FINAL THOUGHTS
Current circumstances are unequivocally requiring sacrifices now, but they’re also creating a new future. As people are forced to learn how to use online video and remote working tools, those tools may be here to stay even after life returns to normal. For creative professionals and small businesses, it’s an opportunity to show off your skills in a whole new medium. You shouldn’t let legal concerns dissuade you or get you inadvertently banned from your platform. Just be aware of the issues and make the right choices, both to protect yourself and to protect all the other creatives who rely on licensing income.