Copyright-US

Internet Streaming FAQs & Tips [US]

The following FAQs were developed by a committee of MOLA members, not by legal counsel.  The views and opinions expressed are intended as a general guide and should not be considered legal advice.  We recommend any individual or organization contemplating streaming or broadcasting seek legal counsel regarding the law, licenses, or any other matters with legal implications. 

Is there a way to record or stream music without obtaining a license or paying a fee?
To avoid licensing and fees, stick to Public Domain music for recording & streaming 

How do I determine what is Public Domain (PD)?
Copyright laws vary by country. In the USA we recommend the following resource for determining PD works HERE

Are all copyrighted works only available as rental?
No, there are many works available for sale, either as hardcopies or downloads. It's important to note that purchasing the sheet music generally does not cover the royalties necessary for public performances, recordings, or broadcasts. 

How do I pay royalties for public performances?
For non-dramatic performances, most organizations and venues have blanket licenses ​or per-concert licenses with Performing Rights Organizations (PROs). In the US, depending on the repertoire and authors, these organizations are ASCAP, BMI, and/or SESAC. 

Can I stream a copyrighted work as long as I've purchased the music?
Generally, no. The Intellectual Property owners must grant permission to record and broadcast or stream. These permissions are sometimes handled by the author directly, but in most cases by their publisher and/or publisher agent. 

What if I'm only streaming from my home and there's no profit?
Generally, if you are streaming a work protected by U.S. copyright law, you will need the permission from the Intellectual Property owner(s), which often comes with a fee. 

Does it matter if I'm streaming video?
Yes, in most circumstances in the U.S., the publisher or publisher agent will require a "Synchronization License" for streaming video of pre-recorded performances. Audio-only streams still require permission/licenses, but not synch licenses.   

What kind of license do I need for a live performance video/audio stream?
In the U.S., PROs offer "per-concert" and "blanket" licenses for live performance streams but have restrictions on streaming platforms and other parameters. These blanket licenses generally do not cover “pre-recorded” streams.  It's important to thoroughly read the licenses before signing them. 

Will the licenses from ASCAP and BMI for public in person performances cover me for live streamed performances?
No. There are different licenses for public in-person performances and live-streamed performances.  Each has different parameters and purposes. 

What if I'm arranging a copyrighted work for recording or streaming?
If you are arranging a public domain work, then you can likely secure copyright for your arrangement. If you are arranging a work that is still protected under U.S. Copyright Laws, then in many cases you may need to first obtain permission to arrange.  Any further ownership or royalty sharing would need to be negotiated with the owner/agent of the original work. **It’s worth noting that many Intellectual Property Owners require arrangers to sign a “work for hire” agreement/side letter that excludes the arranger from any access to royalties or claims for ownership.  You can find more information HERE.

Who do I contact for rights and licensing requests?
There are a couple different avenues available to determine the rights holder or administrator of a work. It’s usually easiest to start with the PROs. ASCAP and BMI both have useful repertoire searches available on their websites that are easy to use and allow for a variety of search parameters. The search results usually list the publisher's contact information which should give you a starting point for requesting permission(s).  If you have a copy of the sheet music, you can also search the MPA (Music Publishers Association of the United States) directory to see who administers the rights for that copyright imprint. This is especially useful for older and out-of-print music that has a copyright holder who’s long since been out of business or bought up by another publisher.  If you have a Harry Fox account, they also have a repertoire search that can lead you to the rights holder.  When writing for permission, it never hurts to include a line such as: “If you are not the rights administrator of this work, please let me know whom I should contact instead.” Rights holders are usually kind enough to point requestors in the right direction.  

How far in advance do I need to apply for permission to video stream?
 
While It varies, in general this can be a very lengthy process.  Most publishers recommend 4-6 weeks advance notice. If you are streaming a work that is only available as a music rental, it's often easiest to apply for the streaming and/or synchronization permissions when you rent the sheet music. Providing thorough and comprehensive information in your original inquiry/application, can help shorten the application process.  *It’s worth noting that many rental publishers also require permission for archival recordings of works they represent, regardless of any intent to ever broadcast, stream, or distribute.  

What information do I need to provide when requesting streaming rights and licensing?  
While each IP Owner and Copyright Administrator is different, be prepared to provide any or all of the following: 
  • Composition Title 
  • Composer(s) [Author(s)] (includes any lyricist or co-composer) 
  • Video Duration
  • Date of Performance
  • Date of Broadcast/Stream/Posting
  • The platform(s) on which the stream will be posted
  • How long the stream will be available online
  • Names of the Performers and/or ensemble, soloist(s) and conductor
In some cases you may be asked:
  • Other repertoire you are streaming on the same stream
  • Will your stream be behind any paywalls?
  • What is the broadcast territory of your proposed stream?
  • Your production budget for the project you are licensing
  • IP owners may require a preview of the material before it's posted (Livestreams are an obvious exception)
  • Is the stream intended to raise funds or just for viewer enjoyment? (This sometimes comes up with Synch License applications)
How much money am I going to have to pay?
Fees vary between IP owners and each calculate fees in different ways. Elements considered in a fee calculation may include: the compositions; the duration of the stream; the length of time the stream will be online; and/or other compositions on the program.  For synchronization licensing your organization’s budget, the location or website where the video will be hosted, and the amount of views you expect the video to receive may affect the fee. In some cases fees and terms are determined not by the copyright administrators/publishers, but by composers’ estates.  IP owners/ © Administrators will frequently provide quotes before sending a contract, and those quotes are often open to negotiation.  Note: Synchronization licenses can be very expensive. Sometimes you can negotiate the cost down by reducing the amount of time the video remains online. Typically, publishers will charge significantly more for a synchronization license in perpetuity*.  

Are these fees negotiable?
Synchronization Licenses and other permissions required for streaming performances are negotiable.  In many cases, a publisher will provide a ball park quote before finalizing the license.  This is a good time to express to the publisher any concerns you have with the fee.  How much the fee is reduced, or if it can be reduced at all, is dependent on many variables and varies from publisher to publisher or even from one title to another title with the same publisher.

Does it matter on which platforms I stream? 
Generally, yes. 

Can I use my own proprietary streaming platform?  Can I use third party platforms (i.e. YouTube, Facebook, Vimeo, etc)?  Can I stream across multiple platforms?
Each IP owner/Copyright Administrator will have a different take on this. Some streaming platforms already have licenses in place with certain IP owners. As these situations are still largely case-by-case, it’s best to name the platform(s) you’re planning to post your stream to when submitting your request.  Your license or correspondence will likely specify which platforms you are allowed to post to and the necessary fees.   

What about
Fair Use?  Are there situations where I don't need a license because of Fair Use?
In United States Copyright Law, Fair Use (Section 107 of the Copyright Act) allows the unlicensed use of copyrighted materials in certain circumstances. Fair use exemptions are nebulous and vaguely written, the case law is inconsistent, and the only way to truly determine a fair use is in a court of law. Because any claim of fair use brings a possibility of legal action, it may be best for this to be an organizational philosophy where an informed management can consider the amount of risk they’re willing to take. Click the links below if you’d like more information about fair use. If you have further questions about fair use please consult legal counsel.

Recommended Resources

'Kendrick Slides'

Further information on 'Streaming of Music - What Rights Do You Need' and licensing information presented by James Kendrick, Esq., (referred to as 'Kendrick Slides') can be found HERE 

Terminology

Blanket License
A license most often obtained from a PRO, that facilitates royalty distribution through the PRO. The PRO generates the License as LICENSOR, and the LICENSEE, usually a performing organization, presenter, or venue, pay an annual flat-rate fee to the PRO.  Licensee’s are usually required to report their performances and streams so the Licensor can determine how to distribute royalties.   These licenses are very convenient and efficient for organizations that frequently present or produce concerts.
 
Intellectual Property 
In the US, copyrighted content is often referred to as "Intellectual Property."  Intellectual Property Owners, in most cases, control the copyright of their works.
 
In Perpetuity
In licensing this term simply means “forever” or “indefinitely.”
 
Live Streaming  
In copyright and licensing terms, this generally refers to a performance that is being performed "live" concurrently to being viewed on the internet.  This is not a "live performance" that was recorded earlier and is now available for viewing after the live performance has concluded. For instance, when a Facebook Live or YouTube Live stream ends, it is no longer a "live stream," even though you may opt to leave it up as an archived video.  If you do opt to leave the video up, there are different licensing implications than a live stream.

Mechanical License
These rights are necessary for distributing an audio recording of a copyrighted work.  Harry Fox acts as a clearing house for Mechanical Licensing.
 
Most Favored Nation (MFN) Clause
A Most Favored Nation clause is a provision in the contract or license that affords the Licensor the best terms (typically regarding compensation) that the Licensee affords to any other Licensor.  This simply means that if you pay a higher level of compensation to another entity, you are obligated to pay that same compensation to the entities with whom you have signed agreements with MFN clauses.  The MFN clauses in music licensing typically are specific to the project being licensed, but MFN language does vary, making it extremely important that you read your contract language in detail.  If you are unsure of any language or how to apply an MFN clause in your situation, we advise you seek legal counsel.
 
Paywall
A paywall restricts access to content on a website, only allowing access to consumers who have paid either through a purchase or subscription.  
 
Per-Concert License
Per-Concert Licenses are available from a PRO, and typically are used by organizations who do not perform enough concert performances to warrant a Blanket License.  This may be a dramatic work organization (i.e. Opera/Ballet Companies) or a small performing ensemble that only performs a handful of concerts each year.  If your ensemble rarely performs copyrighted music (i.e. baroque ensemble) you may find a Per-Concert License most appropriate for your needs. 

Performing Rights Organizations (PROs)
These are organizations that act as a clearing house and conduit for royalties from presenters/performers to IP owners. In the U.S., PROs are ASCAP, BMI, and SESAC. Each PRO represents a different catalogue of works and composers and often offer blanket licenses for qualifying performing rights.
 
Pre-GATT Sets 
A set (hardcopy score/parts sheet music) of a copyrighted work that is no longer available for purchase as a result of the GATT Treaty.  The set of parts must have been obtained legally before the GATT Treaty went into effect.  An owner of a Pre-GATT set does not have to rent the work from the publisher for performance, but all other copyright laws, licenses, and necessary royalties and permissions are applicable as they would be for any other copyrighted work.
 
More info on the GATT Treaty can be found HERE 
 
Synchronization License
A license that allows a user to synchronize music with video content. This type of license is necessary for any non-live video streams and is typically obtained from the publisher, publisher agent, or copyright administrator.  
 
*Don’t be surprised if the contract terminology is different to what you are accustomed.  Most Synchronization License language is geared towards non-classical use.Synchronization Licenses are most commonly used for commercials, TV shows, and Films when copyrighted music is used in the background to accompany the video.  Publishers and copyright administrators do, however, usually require Synch. Licenses for any audio stream with video of a pre-recorded concert even if the video is nothing more than the performers performing the music.