It just takes knowing how; nearly everything can be done if you get the proper permission from (and pay the proper royalties to) the copyright owners and their many assistants.
What makes the use of copyrighted music so complicated is that each particular use of a piece of music involves a different segment of copyright; in that little word is contained the music creator’s every right to reproduce, perform, and distribute music in all its forms, and to collect royalties in exchange for granting others permission to reproduce, perform, and distribute said music. The forms by which a piece of music can be reproduced and distributed have at this time grown so numerous, and the resulting streams of royalties so many, that it requires the efforts of not only a single individual who creates a piece of music but also several companies and organizations that each handle a portion of the administration of a copyright and the collection of the resulting royalties.
Unfortunately for you, the business owner who wants to use a particular song, chances are that if you’ve heard and liked a particular song enough to think it will enhance your business, that song is probably administered already by multiple companies and organizations, from whom you will have to get licenses and to whom you will have to pay certain fees. But, all those copyright owners want to be paid, and all those assisting organizations want to collect that pay. Once you know who or what to contact for your desired use of a song, the licensing process is not that hard. Still, the advice of a music business lawyer is useful in most cases and badly needed in other cases.
In this short article it is impossible to cover all the possible combinations of business uses for music, licenses, and royalties that you might encounter. Several good music business books and an excellent lawyer well-versed in the music business might be necessary to make all the possibilities clear to you. We will look at the more common scenarios.
If you want to play a particular song in the background of your business event or as a theme for your business presentations, you will have touched on the part of copyright known as the performance rights, and you will need to get a license from the performing rights organizations in whatever country the copyright holder has registered his, her, or its (in the case of a publishing company) rights. In the United States there are three performing rights organizations (PROs): ASCAP, BMI, and SESAC. Often you can find which PRO a song has been registered with by looking in the liner notes of the album it appears on, and sometimes on the CD itself; you can also search through the digitized databases of each PRO for the song. Once you have discovered what agency is handling your song, apply to that agency for a performing rights license. The royalty you pay will be accessed based on your use of the song.
Say you didn’t want to take the CD or MP3 you took the song from with you every time you went to work, or if you added the song to some audio materials you plan to give to others. If you made a copy of the song on some portable media (on any media at all), you have now touched on the right to make copies contained within copyright (hence the name). And there are at least two separate copyright holders you will need to deal with. The first is the copyright holder of the original song; from that entity, most often a publishing company but sometimes an individual composer, you will need to apply for a mechanical license, which allows you to reproduce a song in recorded form in exchange for 9.1 cents (for songs under five minutes. There is a formula for longer songs, but we won’t get into that now) per reproduction. You would also need this license if your business was to record the song (a “cover”) on your own album.
Further complicating the matter is that some large publishers have their mechanical licenses administered for them by the Harry Fox Agency, which issues their licenses and collects the royalty fees. Nor is Harry Fox the only game in town when it comes to handling mechanical licenses. It is very important, therefore, to speak with the respective copyright holders and find out who is handling what in the matter of licenses.
But another copyright holder is involved when you want to use a song from a pre-existing album; the record company that produced and recorded a song creates a copyright for itself in the recorded song. Again, you’ll need a performing rights license from ASCAP, BMI, or SESAC. Usually, the owners of the original copyright and the record company register the songs they share with the same PRO – businesses often belong to and register their songs with all three organizations. However, every now and again songwriters who hold their own copyrights do not belong to the same PRO as the record company putting out their songs. Check carefully.
If you decide to podcast your audio presentation containing the song in question to the World Wide Web, you have again touched on the part of copyright known as performing rights, and it’s back to ASCAP, BMI and SESAC for the appropriate licenses. The same would be true if you were to present your audio work on the radio. You may also need something called a statutory license. Most of the time, radio and television stations pay this and you don’t have to bother. But you’re distributing your materials contained the song in question digitally on the Web, you may indeed need the statutory license. You’ll need to check with a lawyer to be sure.
Now if you delivered your speech and song live, in someone else’s place of business the owners of that business will be responsible to have gotten the appropriate license regarding live performances of music from the appropriate PRO. In this case you are off the hook — but in another two paragraphs you will be back on that hook, so keep this paragraph in mind.
Now the fun really begins when you make a video, perhaps of some crucial business materials for remote clients, perhaps for some filmmaking enterprise, that incorporates the song. If you perform the song yourself, you will need a mechanical license from the song’s copyright holder and a license from the copyright holder’s performing rights agency. But you will may also need a synchronization license to pair that song up with imagery, and synchronization licensing negotiations will require all your wits. And if you are going to distribute your film digitally, you may also need that statutory license. Needless to say, if you are in the business of making film and you want to use copyrighted music, you will certainly need a lawyer!
The previous examples dealt with your use of a single song — if you simply want to have the radio or television on in your place of business, you will be touching on the copyrights of several songs. A similar issue would arise if you had people performing music in your place of business. However, you do not have to go find the copyright owners and performing rights agencies for every song you hear. And indeed you could not, for where would you find the time? Instead, take the time to go to all three PROs and get a blanket royalty license from each one. This license will cover your total use of songs from radio, television, or live performances. A fee will be assessed and collected periodically — generally a few hundred dollars per year per PRO.
Now it may be that during the present economic struggles, you don’t have several hundred dollars to plunk down for all the licensing described. An alternative for you is to purchase royalty-free music, which is still copyrighted music but for which you pay a price up front that covers all royalties owed. You can buy whole “libraries” of music this way.
Be sure to do your research, however — playing something that you think is royalty-free when it isn’t can put you in a world of hurt. If you think several hundred dollars a year is bad, bear in mind that the price of copyright infringement for commercial purposes can include up to 10 years in jail and hundreds of thousands of dollars in fines and penalties!
Another alternative is to work with local copyright holders — that is, the songwriters in your area who are looking for their big chance — and work out your own terms with them. You’re running a business that needs music; they’re looking for exposure. If you choose this route you will be a local hero.
But be very careful. Make sure you get everything in writing, and only work with musicians that have their own copyright houses in order. Listen carefully to the songs you want to use; perhaps have your lawyer listen as well. The last thing you need is to get caught playing a song as part of your business that is the product of some writer unintentionally channeling the spirit of Elvis or some other writer whose works are still under copyright protection. If there is an infringement suit around the song you’re using, the lawyers for the infringed will be coming after the person with the deepest pockets — and that person won’t be the songwriter still looking for his or her big break. That person will be you.
Obviously you can use all manner of copyrighted music with your business, no matter what business you happen to be in. What you have to do is get the appropriate licenses from the respective copyright owners and the agencies that assist them, and pay the appropriate royalties. You will need to communicate with individual composers and songwriters and/or their publishers; sometimes you will have to deal with their record companies, and almost always you will have to deal with their PROs. Sometimes you may be able to purchase royalty-free music, and sometimes you may be able to work with local songwriters. Whatever you choose to do, do it right, then use others’ music to enhance your business with confidence.
Deeann D. Mathews is the Creative Director of Praising Pilgrims Music, which has just released The Freedom Guide for Music Creators. Enjoy a big sample of this book at http://www.squidoo.com/freedomguide
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