By Doug Brown
Immediate Past President, Voices of Gotham
Rumor has it that there is a grace period of sorts where intellectual property rights are waived when posting videos on the web. After all, everybody does it all the time, don’t they? For years, people believed that as long as a video clip or sound file was under a certain number of seconds it could be used without securing permission of the copyright holder. That is entirely bogus. It doesn’t matter if the video runs 30 seconds, 22 seconds, 15 seconds, or even five seconds. If the song being performed is even remotely recognizable by someone, it is in violation of copyright laws unless permission has been secured to record and post it. Do the right thing. Don't take a chance. Don't put our Society's reputation at risk. Don't subject yourself, your chapter officers and your chapter to fines – or worse.
There is a difference between the permission needed to perform a song and the permission needed to video-capture a song. And the permissions process for making a DVD is slightly different from the permissions needed to create only a streaming video.
Permission to Perform
For the majority of our arrangements, even when you purchase them through Harmony Marketplace, the right for public performance is a separate right and is secured through the ASCAP, BMI, and SESAC fees the groups/chapters pay each year through the blanket agreement the Society has with these organizations.
The alternative is to choose songs secured from arrangers independently. As the performer, we must ask the arrangers if they have actually secured permission from all the copyright holders to arrange that song before we sing it. Percentages of song rights can be divided among several parties and that is why you must verify that all the copyright holders have given permission to the arranger. Regardless of the purchasing source, fees will still need to be paid.
Permission to Video-Capture
Because of existing copyright laws, any time non-public domain music (published 1923 to present) and any movement whatsoever is being captured on video (or its equivalent), a license must be secured from the parties that own the synchronization rights. They will want to know if you are asking about creating a physical DVD, (where you will need a videogram license), or a Website Video, (where you will need a synchronization/internet streaming license). I found it easier than I originally thought to get the rights.
1. Determine the copyright holders of the song
This information can usually be found with one or more of the following sources:
On the arrangement itself
- American Society of Composers, Authors, and Publishers
- Broadcast Music Incorporated
- Society of European Stage Authors and Composers –
- Society of Composers, Authors and Music Publishers of Canada
- Copyright Office
- Harry Fox Agency
- Canadian Music Reproduction Rights Agency
- Other various websites, such as Wikipedia or Public Domain Info
There are resources such as "Copyright Basics for Barbershoppers" and the "Frequently Asked Copyright Questions", available among the Barbershop Harmony Society documents.
2. Contact the organization
I chose to phone the contact person versus sending an email because I wanted to ensure I was not just going to be a voiceless, faceless entity to them. I wanted to convey that I am a real person whose organization was interested in doing the right thing for all parties involved.
3. Remind them of your background
When I got the person on the phone, I started out by telling them that I was not an expert in this area of licensing and law, but I wanted their help to ensure we understood what we needed to do to secure their permission to post the video on YouTube.
The first thing they tended to do was to check their internal records to see what percentage of song ownership they actually controlled and who any other owners might be. Once they saw what the percentage they controlled, they were able to talk from a more confident position.
4. Explain what you want to accomplish
All we wanted to do was post the video clip as a streaming, non-downloadable clip so that people who were trying to figure out if they should hire us or visit us could see a sample.
I further explained that I clearly understood if in the future we were going to ever try to produce a physical product or monetize the clip in any way, for example, creating a DVD for distribution, that would require us to have a different discussion and would involve signing agreements and paying fees as usual.
5. Provide a Memo of Understanding
Once our intent was clear, many times the synchronization manager would verbally agree to give us permission to post it. I thanked them, and told them I would immediately send them an email to confirm and ensure our mutual understanding. The content of the email typically reads as follows:
Thanks so much for sharing your time with me. Please confirm back that I have correctly captured our conversation.
Memo of Understanding (MOU)
The song we discussed was [Song Name] from [Publisher]. It is our desire to create a video clip that would be posted on YouTube as a streaming video. There would be no product sales involved at this point. It would strictly be for promotional purposes. I understand that there is no charge for us to do that as long as we fulfill our obligation to provide you the URL so that you can send it to the Harry Fox Agency. We understand that HFA will receive compensation as a result of the blanket contractual agreement with YouTube that allows them to monetize the URL.
I also understand that if we convert this to a product, such as a physical DVD, or allow for a digital download, we are obligated to secure a license from you that specifies agreed upon terms and quantities.
Have I missed anything? If not, please sign and return this MOU to me. If it can be attached and returned in an email right away that would be great.
Thanks again for your help!
Once the contact confirmed our understanding was correct and we had permission from all the owners, we could proceed as necessary to post the video and send our contact the URL address.
6. Request forms for license payments
For those instances where the copyright owners required a payment to license, I requested they email the forms to complete. As part of the paperwork, you will be asked to propose a fee(s) for the length of time you want to keep the video posted. The owner can choose to accept or reject your offer. The paperwork requests details such as the anticipated duration of the clip, the use of the video, and the geographic area from which viewers are expected.
7. Process the paperwork
Once our offer was accepted, we were emailed the invoice and contract that was contingent upon the receipt of our payment. We signed and mailed the contract and check to the addresses specified. We proceeded to post the video and send the URL address as we had agreed to do.
Most Favored Nations
There is one more licensing-related term that I became aware of in the licensing business. That phrase is “Most Favored Nations” (MFN). Simply put, it means that whatever the most lucrative deal one owner of the song receives, all of the owners of the song rights get that same deal. To give an example, let’s say a song is owned by four copyright owners. If three of the four song copyright owners agreed to waive their fee, but the fourth refused, if you decide to proceed and use the song, all four owners would be entitled to the same compensation. In other words, if you must pay one, you must pay all at the same rate.
Public Domain Songs
Songs in the Public Domain do not usually require any permissions and can be posted as soon as you complete the video. As a rule of thumb in the US, musical works published with a valid copyright notice of 1922 or earlier are usually in the public domain. Exceptions are if the arranger or other entity is claiming the copyright in the arrangement itself (a derivative work). You will have to research this before making a decision, and, unfortunately, the US Copyright Office does not offer an official website or resource as to what songs have fallen in the public domain! Also, please note that copyright laws and regulations do differ widely outside the USA. Just to be sure, I suggest that you check with a trusted attorney who works with intellectual property law, or refer to the copyright resources posted on the www.barbershop.org website (and other trusted websites) before you record and post any song.
As you can see the process is fairly simple. In some cases, I have been able to accomplish all the steps in under an hour start to finish. There is no reason to not do the right thing.
Now go get started on posting your first legal video!
Special thanks go out to Janice Bane, Music Licensing & Library Manager, Barbershop Harmony Society and Noah Funderburg, JD, Past President, Barbershop Harmony Society, for their technical assistance in creating this article.