Licensed to Stream? Clearing Rights Can Be Tricky In the 'Wild West' Livestream Age
Many of us are, or have musician friends who are, performing cover tunes live on social media platforms as a means to generate income, bring some joy, and stave off cabin fever! Our world needs our live music right now! It keeps us connected, it helps us to feel, to express, to remain in touch with our hearts and humanity. But performing copyrighted material can also be risky because copyright law clearly states that permission from copyright owners must be secured in advance through a variety of licenses. Further complicating the matter is that not all the powers that be can even agree on which licenses must be secured for which purposes! But wait! There's more! Some social media platforms already have licenses in place, while others do not, or have only partial permissions from publishers and copyright owners. The bottom line is that a musician's live online show can get shut down or worse, fines might be imparted!
Clear as mud?
So how can we keep the music playing while also avoiding copyright infringement issues? This article orginally published in Billboard Magazine can help guide.
With venues closed, more artists are turning to livestream performances — some without the proper licenses. "There's probably a lot of infringement going on."
To make sure acts like Elton John, Lady Gaga and Billie Eilish could perform the songs they wanted during Global Citizen's April 18 "One World: Together at Home" concert, Julie Wadley and her team worked 12-hour days for over a week. "I woke up early, I worked late," says the owner of Say Yes! Music, who cleared the rights for 130 songs so the event could be streamed live and shown on demand all over the world.
Over a month into the pandemic shutdown, livestream music performances have evolved from cool curiosities into an essential way for artists to reach fans, and sometimes even make money. Besides the Global Citizen event, which raised $127 million from mostly corporate sponsors for food banks and coronavirus-related causes, Diplo and Major Lazer have performed over a dozen "Corona World Tours" on YouTube for between 17,000 and 88,000 viewers each. A Bandsintown survey showed that almost three-quarters of fans say they'll continue to watch such performances once real-world venues reopen. But as Wadley's workload shows, clearing the necessary rights can be complicated.
Live performances online, like those at traditional clubs, need public performance licenses from collecting societies like ASCAP and BMI, which platforms like YouTube and Twitch have. Making those same performances available on demand on a continual basis also requires mechanical licenses from publishers — as well as synch licenses if video is involved. (DJs also have to get similar rights to recordings.)
Mechanical licenses vary in cost: "A couple hundred bucks to a couple thousand bucks, depending on the nature of their use," says Barry Slotnick, a Loeb & Loeb attorney who represents artists, songwriters, labels and publishers. But they require the performer to track down the publisher, which isn't always easy.
The law isn't always entirely clear, either. Some rights holders believe that all livestream performances involve making a copy, and thus require mechanical rights, or synch rights in the case of video. "It's like the Wild West out there, and some of this is evolving," adds Ben McLane, a music attorney who has represented numerous artists and labels. "You don't always know which of these licenses are applicable or necessary."
Some of the big platforms, including YouTube and Facebook (which owns Instagram), have the necessary licenses with almost all publishers, so artists don't have to worry about what songs they perform. Other platforms don't. "You've got companies like YouTube and Facebook checking all the boxes, and there are some that say, 'What boxes?' " says a label source. Twitch, which focuses on livestreaming, although not only with music, said in a statement that it "requires users to stream content they have the necessary rights to stream — for example, music they've written or licensed." If that's not the case, rights holders can issue takedown notices under the Digital Millennium Copyright Act.
The complexity of the issues can be intimidating. If an online live performance requires a public performance license, and an on-demand stream involves both a public performance license and a mechanical license, what licenses do time-delayed live performances require? "It can be a thicket," says Eleanor Lackman, who handles music litigation for Mitchell Silberberg & Knupp. "There's probably a lot of infringement going on. We've had this flood of use with the stay-at-home orders, and there has to be a lot out there that isn't licensed."
So far, there haven't been many legal threats — because livestreaming isn't yet a big business and labels and publishers don't want to interfere with their artists trying to make money during a crisis. A representative for a well-known singer who recently performed a livestream says the team didn't bother to clear rights. "We just did it and no one has come after us," says the representative. "No one has contacted us about clearing anything, either."
Clearing rights can be even more complicated when DJs incorporate snippets of existing recordings into performances. For a recent livestream, Diplo played parts of recordings like Marvin Gaye's "Got To Give It Up," in addition to his own compositions. Since those performances are available on demand, his team has to clear the relevant rights with both publishers (of the compositions) and labels (which own most recordings). In this case, Diplo's manager, Andrew McInnes of TMWRK, managed to pull it off. "The big companies have been helpful and supportive of what we've been doing," says McInnes. "Pre-coronavirus, it was complicated to do things like this, but everyone's working together to keep some positive music experience out in the world right now."
Publishers say they're doing their best to streamline their licensing processes during the anxious period of no concert revenue. "We're trying to clear as quickly as possible and be as accommodating as possible because of the status of the world," says Kelly Baden, vp worldwide licensing operations at Concord, which administers the publishing for the Rodgers & Hammerstein Organization and Leonard Bernstein's catalog. "We have definitely had discussions about, 'How do we take this out of our normal process and expedite this?' "
As livestreaming grows, however, rights holders will probably balance this kind of goodwill with their desire to get a piece of a promising new business. "If I'm Beyoncé and I say, 'Everybody show up,' and we're going to see her and Jay-Z and the kids playing in their living room, if I were a [label or publishing] executive, would I call them and say, 'I know you had to cancel your tour, and I know that's a loss of income for you, but I want a piece of this'? That's a tough call," says a publishing source. "I'm guessing the executives would say, 'Wait a second, this could be the future.'"
This article originally appeared in the April 25, 2020 issue of Billboard.