As you may know, we listen to a lot of music at home. Every once in a while, we find our 10 month old daughter, Jasmine, bobbing her head to a particular track. We noticed her interest in certain songs even when she was in the womb. For example, "Say Hello" by Deep Dish (Positiva) featuring vocals by Anousheh Khalili. She started kicking to the rhythm of the track before she was even born and, till this day, the track calms her every time we play it.
In the last few weeks we noticed that Jasmine dances every time we play "Hear My Name" by Armand Van Helden (Southern Fried). She shakes her shoulder, waves her hands and occassionally lifts her butt in the air to the beat. It is one of the cutest things I have seen in a long time. She smiles the whole time she is doing this.
It was one of those moments that I felt had to be shared with the rest of the family and therefore the easiest thing to do would be to video tape her dancing and post it on her site. However, this got me thinking.
How do I post such a video clip legally?
First thing first, I would have to have our baby daughter sign a contract saying that she approves of the taping and publishing of her dancing. I'd have to negotiate some royalty payment to her, but maybe we can do that based on us providing her with our college savings funds. Or we can just cover part of her rent.
Now, what about the background music that she is dancing to? Should I contact the label and tell them that I would be more then willing to pay 50 dollars for the life time of the video for licensing the track and the right to redistribute it as part of this clip. Do I contact ASCAP, BMI, SESAC or the Harry Fox Agency? There is a pretty good Licensing 101 page on the SoundExchange website. They have a question that talks to almost exactly what we need.
I'm going to videotape a public performance where there may be some background music used for the performance. Do I need to obtain a license for any such music? If so, what kind of license(s) do I need and where can I get them? Does it matter what I plan to do with the tape (e.g., sell it, stream it on the Internet, perform it in a public venue)?
It is in fact necessary to secure more than one license in order to videotape a performance that includes background music (unless, of course, the background music is deleted from the videotape). For more information, please go to FAQ
I looked at the FAQ, but I could not find anything related to licensing music that is being played in the background during a performance.
They have another question that answers what is needed to license music for a video soundtrack. It is the closest thing I found.
I'm making a video and want to create a sound track for the video using popular music. Do I have to obtain permission from anyone to use the music in my video? If so, from whom do I get it and how do I go about getting the permissions?
In order to use commercially released musical recordings in a video, a variety of licenses (detailed below) are required. However, SoundExchange is not in a position to grant any of the licenses you will need.
Every musical recording embodies two distinct copyrighted works. The first is the underlying musical composition, comprised of the written notes and lyrics (for purposes of copyright law, the musical composition is referred to as a "musical work"). The copyright in the musical work is usually owned by the songwriter and/or his or her music publisher. The second copyrighted work is the actual recording itself - the sounds, including the recording artist’s interpretation of the musical composition, and the creative efforts of the producer, sound engineers and background musicians. (This is referred to in copyright law as a "sound recording.") The copyrighted recording brings to life the written notes and lyrics of the musical work. The copyright in the sound recording is typically owned by a record label.
The two copyrighted works described above are subject to a variety of separate rights (e.g., reproduction, distribution, performance), each of which must be licensed separately and must be licensed from separate entities. In order to obtain permission to use a commercially released musical recording in a video, you must obtain the following licenses:
- For each individual musical composition you will be using, you must obtain a synchronization license from the songwriter and/or his or her music publisher. Publisher contact information can be obtained from ASCAP, BMI, or the U.S. Copyright Office. It is possible that some of the older musical compositions you plan to use are in the public domain (i.e., their copyright has expired), but determining the public domain status of a given musical work gets rather complicated. If you think the musical work you wish to use is in the public domain, we recommend that you review this issue either with a copyright attorney, the individual music publishers or someone at the Harry Fox Agency.
- For each individual sound recording you will be using, you must also obtain a master use license from the individual record label that owns such sound recording. The name of the relevant record company can usually be determined from the liner notes that accompany the commercially-released version of the music. To assist you in this process, a list of licensing contacts at the major labels is attached to this note. Each of the labels will set their own fees based on a variety of factors (e.g., how popular the song is or was, how current the song is, the type of video project, the number of copies that will be made, etc.) Because the labels receive numerous licensing requests, it generally takes some time for these licenses to be granted. Please be aware that labels are not required to license their recordings for use in video projects.
- In order to publicly perform the music in the finished video, you (or the venue where the video is shown) must also obtain a public performance license from the relevant performance rights organization(s) (i.e., ASCAP, BMI and/or SESAC). Each of these organizations represents a separate roster of individual songwriters and music publishers and offers a license to perform all of the musical compositions in its catalog. Further information about these organizations can be found at their respective web sites (www.ascap.com, www.bmi.com, www.sesac.com). No public performance license is required with respect to the sound recording.
What about our family members and friends that live overseas? Do I need to pay licensing costs for each of those countries as well? This is starting to become quite an ordeal for a simple home video clip. Even so, it is possible I will never be granted an international license. It is possible that the rights holders do not want my video to be associated with their music. I guess that is fair, but it certainly is a complicated and very time consuming process. Do I really need to do all this for a home video of a little girl dancing? It seems like I should be able to go to a single place where I can give them a reasonable payment and be done with it.
Maybe startups such as RoyaltyShare could help out. Although, this is just a video where the primary motive is to show our little girl dance. It is not some multi-million dollar production that can afford to spend a few months tracking down the right people for licensing.
It seems to me that during the days of VHS, people made videos of their children and weddings with little concern for the music playing in the background. I guess it was assumed that the video was for private use and it would be distributed to a limited audience and therefore was considered "fair use".
Now that the video is digital and distributed electronically over the internet, suddenly it is no longer considered "fair use". Is it because of the potential wider audience and the ease of distribution? Or maybe it was always done illegally, but there was little to no way of auditing this.
While I am spending all this time working out the rights to be able to distribute this video to friends from my website. It seems that I might as well find every decal and branded item that I find through out my personal video and see if I can get some spot advertising deal. Maybe I can get enough advertising revenue to cover the licensing costs?
It is sure is an interesting and detail oriented world we live in.