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YouTube and BMI

This is an important follow up to the thread I started earlier about use of copyrighted material on YouTube. There are so many nuances to the copyright laws that I want to make clear what exactly I am talking about. I believe the revelations I have received from the copyright Gods at BMI are true for 95% of what we do, in relation to copyrights covered by BMI and our uploading of videos of those works to YouTube. The following are exerpts from emails from Jerry W. Bailey, Sr. Director of Media Relations & Business Communications for BMI:
 
"It is correct that YouTube is licensed by BMI for all performances over its (YouTube's) platform." (parenthesis mine)
 
"BMI licenses only the "public performance" of music, as defined by copyright law. A public performance is defined as any performance outside a family and its social acquaintances. A YouTube video is a public performance. Since choral groups usually perform live, and those live performance may be videotaped, generally a public performance license (such as YouTube has) from BMI (when BMI represents that composition) is all you need when posting a choral performance on YouTube. If, however, you synchronize to video an existing recorded performance, then you may also need both a synch and master use license. The synch license would come from the publisher, and the master license would come from the record company (or organization/person) which owns the original sound recording. The act of synchronizing a recorded musical composition to video triggers the additional synch license, and the duplication of an existing sound recording owned by someone else (often a record company) also triggers an additional master use license. The act of recording a live performance on video does not trigger synchronization, but taking any existing recording and setting it in timed relation to audio/video images does trigger synchronization."
 
So it would appear that as far as BMI is concerned we can put a piece whose copyright is covered by BMI on YouTube with no additional license for that video. Be sure to read his comments above about synch and master use licenses.
 
Mr. Bailey I am deeply in your debt for clearing this up.  Next step:  Find out if YouTube has a similar license with ASCAP
Replies (9): Threaded | Chronological
on September 28, 2010 12:08pm
Thanks for sharing.  It is good information to have.
 
This appears, however, to cover only the performance licensing side of the copyright issue.  It would seem NOT to cover the mechanical (or DPD) licensing, which is required for any digitally recorded and downloaded, copyrighted work.
 
Some sort of DPD license would seem to be required for posting a copyrighted work on YouTube.  Since YouTube displays the number of views (downloads?) a particular video has had, perhaps even a standard compulsory license would suffice, if one were willing to pay the compulsory rate times the number of views (and cross your fingers that your video does not go viral???).  It would certainly be worth asking Harry Fox and other administrators about.  I think many publishers (especially the smaller ones) would be willing to negotiate reasonable terms.
 
Any music industry lawyers out there who can correct me on this?  I am sure this has already been hashed out by someone somewhere...
on September 28, 2010 10:14pm
Phil, you are correct that this doesn't present the entire picture. Even Mr. Bailey of BMI, with whom I have also been corresponding, clarified that when he wrote the following to me:
 
"...distributing multiple copies of a recording can trigger the need for another type of license, usually called a 'mechanical' license.  This would be obtained directly from the music publisher, or from the Harry Fox Agency (which represents many publishers). Whether a music publisher would view distribution of a YouTube video the same as a sound recording, I can't say. That's a good question to ask the publisher of the musical composition."
 
In an earlier message to Jack Senzig, Mr. Bailey wrote "BMI does not own music copyrights." Precisely. Making a recording of a copyrighted work and distributing it should trigger the need for specific permission of the copyright holder or mechanical licensing, IIUC. I think it's time to talk to some of the major choral publishers about this. I think they tend to be quiet about the issue, so as not to appear as "bad guys" or to hurt the maketability of their product, but I'm guessing that they'll be willing to speak "off the record" on this issue.
 
Speaking of BMI, here's an interesting quote from their "New Media FAQ" -
 
Q: Is a song clip which is 30 seconds or less exempt from public performance fees?
 
There is no exemption for 30 seconds of less under U.S. Copyright Law. Record companies may permit such uses by certain businesses for the purpose of promoting album sales. Remember, however, that record companies derive most of their revenue from sales; BMI songwriters and publishers, on the other hand, depend heavily on income from public performance royalties.
on September 28, 2010 8:38pm
This just got undone by an appeals court ruling saying that music downloads are not performances and so BMI's opinion is now worth squat.
on September 29, 2010 6:47am
When you say that "this just got undone," what exactly are you referring to? I've read several versions of this news report and none of them mention YouTube or BMI. Here's a link to what seems to be a clear report of the ruling: http://tinyurl.com/2a7du2y
 
The first part of the ruling involved "blanket licenses to publicly play the entire repertory of the not-for-profit American Society of Composers, Authors and Publishers (ASCAP) on some of their websites and services" for Yahoo and RealNetworks. But I don't think that's the part of the appeals court ruling to which you're referring. Here's a quote from the article:
On a separate issue, the appeals court agreed with a lower court's 2007 decision 'that a download of a musical work does not constitute a public performance of that work' under copyright law. ASCAP had argued that digital downloads, or copies of music, are also public performances for which the copyright owners must be compensated.
But without seeing all the exact language of the decision, it's hard to be sure if the "downloads" involved things like podcasts, purchased music tracks, tracks temporarily downloaded as part of subscription-based services (which RealNetworks and Yahoo operate), or all of the above. IOW, I'm not sure it's as cut and dried that your pithy message appears to indicate. :-)
on September 29, 2010 8:37am
Here's a link to the actual decision. On p. 17 it says "all parties agree" that audio/video streams "constitute public performances" and this case only concerns files which are downloaded first and then listened to. So you are right and I stand corrected; this case is irrelevant to YouTube, which only does streaming video.
 
However, the matter of mechanical licenses, as other users have commented, is still paramount.
on September 29, 2010 8:52am
Colleagues:  OK, just to break this down, I see nothing surprising in the court ruling.  For once, it seems to follow common sense.
 
Item:  A recording is not a public performance.  Duh!!!!!  IT NEVER HAS BEEN!!  They are defined differently in the law, covered differently in the law, administered differently according to the law, and they always have been.  (OK, "always" means since 1909, when the law first incorporated two DIFFERENT new features:  the entitlement of copyright owners to the payment of royalties for the "public performance for profit" of their works, and the new restrictions on and royalty payments for the RECORDING of copyrighted works, which were actually the result of attempted monopolies by the piano roll companies--thus the "mechanical license.")  ASCAP was simply overstepping their bounds by claiming anything else (not the first time they've been known to do that!).
 
Item:  A recording of a copyrighted work requires a mechanical license.  Again, cut and dried in the law, with a single exception that I'm aware of.  Under the Fair Use Guidelines a SINGLE archival recording of a public performance is allowed, but it may not be duplicated or distributed under Fair Use.  Any other recording requires a license through the copyright owner or the Harry Fox Agency, and payment of a per-copy royalty for every copy made and/or distributed.  (That's where Internet posting and downloading question come into play, and I'm not sure that's been settled yet, but what's clear is that Fair Use does NOT apply to doing so.)
 
Item:  Any and all distribution of a recording requires both a mechanical license for the recording itself (except under Fair Use) AND the payment of per-copy royalties.  That's what got Napster in trouble, even though they claimed that they were just "facilitating file sharing."  And THAT seems to be the legal precedent here.
 
Item:  I don't entirely understand synchronization, but it doesn't seem to apply to a recording (audio or video) of a live performance, but rather to adding a sound track to a video presentation.  Perhaps someone could clarify this.
 
Item:  Ignored in all this is the simple fact that, depending on how the copyright notice on the music reads, the arrangement itself may well require additional permissions, licenses, or payment of royalties, EVEN IF the underlying work may be public domain.
 
I appreciate that Jack is looking for simple answer to simple questions, but NOTHING involving copyright law has EVER been simple, not even the questions!!!  In fact not even an attorney's opinion can be entirely trusted, unless that attorney is an expert on copyright law, and unfortunately copyright law itself is a moving target since The Best Congress That Money Can Buy keeps tinkering with it to make their corporate contributors happy!
 
All the best,
John
on September 29, 2010 9:07am
I think what some of you are confusing is the difference between a download and a public performance.  The view count on a YouTube video is not the number of times it has been downloaded but rather the number of times the performance has been watched.  People may illegally download it from YouTube, but they would have to intentionally do it, there is no download button.   In the emails I quoted Mr. Bailey was very clear in that difference.  If you want to sell the audio from your video on iTunes you definitely need a mechanical license.  If you put up a video of your kids singing to a Showtrax-like accompaniment you may well need a synch license but if the piece is a typical choral performance as I defined above and BMI is responsible for the copyright it seems clear that it is legal to upload it to YouTube.  
on October 1, 2010 6:39am
Ahhh...so you are saying that because YouTube does not provide a button to download videos (for their non-pay services), neither they nor the party that uploaded the content can be held liable for the infringement of individuals who create copies of them anyway.  That makes perfect sense -- just as people could theoretically make copies of our CDs or performances, but there is no way we should or could be held liable for those bootlegs.  I would certainly hope the courts would see that logic.
 
Then that leaves only the matter of performance royalties, which depends on how the courts define a "public performance", but regardless of how that discussion turns out, as long as YouTube has already made "Interactive Streaming" arrangements with BMI for every view of every video with BMI-administered music, then we should be able to upload as many BMI songs as we like (assuming no synchronization) and never have to worry ourselves with performance licensing and royalties.  I can see where this makes a lot of sense from both a logistical and a legal standpoint.
 
Thank you for the clarification!   I will be very interested to hear whether YouTube has also made similar arrangements with ASCAP and SESAC.  It certainly promises to make our lives a lot simpler, while ensuring that composers receive their due compensation.
on October 1, 2010 10:13am
On what defines a "Public performance", if Jerry W. Bailey, Sr. Director of Media Relations & Business Communications for BMI tells me that YouTube videos of copyrighted works they cover are Public Performances then I trust that they are.   
 
I have found some evidence that YouTube does have a license with ASCAP but there are a lot of other questions I have before I would say that is true.  In 2009 ASCAP reportedly sent emails to "For Profit" websites that used ASCAP copyrighted videos embedded from YouTube on their sites.  YouTube responded to queries from people who received those letters by telling them that their (YouTube's) license covered from upload to end user and that they should refer ASCAP to them.  
 
Here is a video of YouTube's view on how their fairly recent agreements with copyright holders is good for everyone.   They spoke at the TED conference in January 2010.  http://www.ted.com/talks/margaret_stewart_how_youtube_thinks_about_copyright.html 
This is just an FYI and not given as evidence of any licensing one way or the other.
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