One of the most complex facets of being a content creator is understanding the often convoluted nature of music licensing. It’s a confusing maze of legal terms and scary consequences!
In this article, we’ll try to explain, in the simplest terms possible, how this music licensing affects you. To keep things simple, we’ll only be using the context of music and individual songs.
*Disclaimer* This article is not intended to be legal advice. The information given here is generalized and lacks the depth or specificity to be used in a legal argument. Always consult an attorney for legal advice!
With that out of the way, let’s start at the law that is the source of all this confusion:
The Digital Millennium Copyright Act. (DMCA)
The DMCA is a law that was passed way back in 1998 by the United States Federal Government. It’s an attempt to form a comprehensive approach that (in a nutshell) protects things like music, games, movies, images and software from being used without the permission of the rightful owner or owners.
There are 2 main parts we need to understand about the DMCA to get an idea of how we got to where we are today.
- Copyright Protection. The main thrust is to ensure that if an artist, studio, or producer creates something to sell, it isn’t simply copied by someone else and distributed or used without the owners getting paid for it. This includes criminal penalties for those who are caught distributing and possessing unpaid copies. The act of using copyrighted material without permission is called “copyright infringement”.
- Safe Harbors for Internet Providers and Platforms. Included in this act were protections for internet service providers, websites and service platforms from getting in legal trouble if copyright infringing material is found on their service. However, this only applies if those internet service providers, websites and service platforms immediately remove that content at the request of the owners and also take steps to remove repeat offenders.
So, to wrap that all up in a single statement:
The DMCA allows the owners of copyrighted music to remove it from the internet if they haven’t given very specific permission for it to be there.
They can also leverage criminal penalties against those who put it there in the first place. Platforms are immune from those penalties, as long as they immediately comply with the owner’s request to take it down. They also need a system to prevent repeat offenses.
What does “Ownership” mean though?
When we talk about “who” owns copyrighted material, things can get a little bit crazy. Owners, in this context, are the “rights holders”. They are the ones who legally dictate where, when and how a song can be used or performed.
Let’s take any popular song you’ve heard on Spotify and use it as an example.
When a musician or band records a song, it is common practice that many different people or corporations own little parts of that song, but not all of it entirely… not even the musicians who wrote it! For example, there are:
- The recording rights = Who owns the right to record the song for distribution or use.
- The compositional rights = Who owns the arraignment and composition of the song.
- The reproduction rights = Who owns the right to reproduce the song for media like CD’s and digital files.
Rarely will you find a song on Spotify that has a single person owning all of the rights. On top of that, each artist or group’s music can have a wild variety in the number of organizations and entities who own each right. It’s not uncommon to find music with 10 or more separate reproduction rights holders.
This is the reason why a recording artist can’t fire up a Twitch stream and perform their music whenever they feel like it. The rights holders to their music needed to have given the specific permissions for that artist to stream the songs. Otherwise, that artist could face penalties.
Each rights holder is entitled to a percentage of money from that song’s use. They will only allow that with a legal contract in the form of a license that ensures they get paid.
So what does “permission” mean here?
In the world of copyright law, the concept of “permission”, for all intents and purposes, means a “license”.
A license is a contractual authorization, between the rights holders and the end user, for a song to be used in a very specific way. As you can probably guess, there is more than one type of license a song can have and each one covers a different way a song can be used.
It is entirely possible to seek out and pay handsomely for a license, only to be sued later because you used the song in a manner that wasn’t covered by the license you got.
The typical licenses are:
- A Public Performance License – This gives permission for the song to be performed or transmitted to the public. An example of this would be a major sporting event that wants to play a recording of a copyrighted song in the arena during the game. But does not authorize it to be broadcast on TV at the same time. (See how complicated this already is?)
- A Synchronization License – This license allows a song to be played in timed relation (Synchronization) with video or film. Using our sporting event example, this is the license that allows that song to be broadcast on TV or the internet.
- A Mechanical License – This allows someone to recreate copies of the song and distribute it in media form like a CD or audio file. But does not allow someone to create a copy of that song and distribute it within a video format like a broadcast, Youtube or Twitch stream. That’s what the synchronization license does.
So, using that same sporting event example, there would need to be both a public performance license AND a synchronization license issued for that song, from the rights holders, to the producers of the sporting event, in order for that song to be played during a live broadcast.
The public performance license authorizes it to be played in the arena. The synchronization license covers the people at home watching the video on TV or internet.
Simple, right? There are even more licenses than what’s shown here, and each serves a specific purpose.
So, now we have a general idea of what the DMCA is, what ownership means, and what licensing is.
But how does all that apply to us as content creators?
The DMCA and You
As a content creator, streamer, youtuber, broadcaster… whatever moniker you assign yourself, you ABSOLUTELY are affected by the DMCA if you create video content for a streaming platform.
If you’ve spent any time in this industry, you’ve heard about content creators being “DMCA’d”, getting a “copyright strike”, or getting a “take-down notice”.
This all usually refers to the same thing; someone on a content platform had their videos or broadcasts taken down against their will because a rights holder claimed it was copyright infringement. (Or someone claiming to be the rights holder)
The reason these instances happen with no warning is because the platforms and services we upload our content onto are immune from any responsibility provided they take down the copyright infringing material immediately.
Rights Holders With The Upper Hand
The last thing platforms like Twitch or Youtube want to do is get embroiled in a costly legal battle. Especially with legal behemoths like a record label! So it’s in their best interest to simply take the content down and pass the problem onto the uploader.
Rights holders of music have invested millions of dollars in technology and legal entities to protect their monetary rights. Using automated monitoring and notification processes, they have the ability to scour tens of thousands of videos a day.
Even though technology and streaming has evolved, the DMCA and music licensing has not. The process of properly licensing music is wildly complicated and expensive. It’s out of reach of everyone except a tiny portion of the content creation community.
As a result, the rights holders know that the vast majority of all content creation does not have the proper licensing to play their music. If their material appears in a Twitch stream, the chances of it being there legally are slim to none.
What happens when content is suspected of infringing on copyright protections?
Today, the process of what happens when content is removed from platforms because of copyright infringement looks like this:
- Either an automated bot taught to listen for specific music or a human representative, acting on behalf of the rights holder, identifies a livestream, VoD, clip, or video on a content creation platform that contains music they believe is not properly licensed.
- A claim of copyright infringement is issued from the entity representing the rights holder to the website where the video with the song is located. The notice must contain specific information relating to the location and the nature of the infringement to be valid. This is what is commonly referred to as a “take-down notice”
- The DMCA specifically says they’re immune to any legal problems provided they take the suspected content down. So the website or platform will almost always remove the content and notify the uploader of the suspected copyright infringement.
- The website or platform will issue a “copyright strike” against the uploader of the infringing material. The DMCA requires platforms to have a process in place to prevent repeat offenders. Most (if not all) websites or platforms have implemented some variation of “Three strikes and you’re banned forever” policy to satisfy this.
- The website or platform must allow the uploader a method to appeal the removal and/or copyright strike. However, it is up to the uploader to provide all contrary evidence, time and effort for the appeal. It must also satisfy the rights holders, not the platform or website.
This process is usually referred to as a singular action and called being “DMCA’d”. However, you can see there are many steps and entities involved here.
The problem with the DMCA and streaming.
The intersection of the DMCA and today’s content creation is a contentious one. On one side, you have people just wanting to make content using their favorite music. On the other, you have the DMCA and rights holders supporting their monetary interests.
The internet and content creation has advanced light years beyond when the DMCA was created. As a result, how that law affects content creators can feel antiquated and overly harsh.
The only license available that properly authorizes a content creator to use any portion of a copyrighted song on stream or in videos is a synchronization license. However, with the current system of music licensing, it’s not practical for the average content creator to obtain one.
Synchronization licenses and an archaic system.
Synchronization licenses (aka sync licenses) were originally intended to be issued to movie and television studio production companies. They are the only type of license that authorizes a song to be used inside a video format.
These licenses were designed to ensure that all music used in movies and TV shows properly compensated the rights holders for each time that song would be heard by the audience. Because of this, they are extremely expensive and legally challenging to obtain.
Youtube content, Twitch content and all other forms of video content falls under this umbrella.
As a result, this same “production company” framework is being applied to streaming content creators. Someone playing a song on Spotify in the background of their Twitch stream is subject to the same licensing requirements as Paramount Pictures would be if they used that music in a summer blockbuster.
Pricing Out Of Reach
Although the price varies by the artist and the type of broadcast, a sync license for a popular song could cost upwards of $100,000 USD or more. Sometimes much, much more.
Your average streamer does not have this kind of financial clout. They also won’t have a team of attorneys to properly navigate the legal system. The pricing and legalities were originally intended for movie studios and television production companies to negotiate.
As a result, there is no viable way to obtain the licensing needed to broadcast copyrighted music on your stream. You need to use a properly licensed music service. (Pretzel, Monstercat, ect.) While these services take care of the licensing concerns for you, they probably won’t have the same selection of music you’d have on Spotify.
THIS is why DMCA take-downs are such a hot and miserable topic in the world of content creation.
As people continue to take the risk of using unlicensed, copyrighted music in their videos and streams, the rights holders of this material remind the community that it’s illegal by issuing large swaths of take-down notices.
You should also know that all signs point to these rights holders escalating their fight against copyright infringement. By using newer and more powerful detection methods, some can now detect copyrighted music in real time during a live stream.
So what can you do about it as a content creator?
The short, simple and ONLY answer is: Avoid playing or performing any music you haven’t got a specific synchronization license for on your stream or uploaded videos. Period.
Use a safe-for-stream music service instead.
Head over to our article on music for streamers to find a wealth of resources where you can get music for your streams. All these services are specifically licensed and legal for your content. If a mistake happens, and your video is removed because of a song played through one of these services, they can serve as a helping hand to reverse the process as well. These services have the legal and technical knowledge needed to navigate the DMCA structure with the rights holders.