Using Copyrighted Music in Videos: When is it Legal?

Using Copyrighted Music in Videos: When is it Legal?

Copyright law is one of the grayest areas on the internet, and violations happen more often than a troll comment gets posted to YouTube. Well maybe not, but potential copyright violations can be confusing to navigate if you don’t know how the laws apply to your particular situation, especially around the issue of copyrighted music and audio.

Often creators don’t even realize they are violating copyright laws. But we’re here to help. Although I have to mention up front that this is not legal advice and cannot substitute for a good copyright attorney, following these steps can help to ensure that you’re the only person who can earn money from the works you produce.

Using Copyrighted Music and Audio in Video: Post Contents

In this post we discuss the legal implications of using copyrighted music in your videos, and confirm royalty-free, public domain options. We also highlight some of the biggest myths about copyright and music:

Music Copyright 101: What Audio Can You Use and When

Using Copyrighted Music in Videos: When is it Legal?The easiest way to avoid copyright violations is to create 100% original content. But what about using sound effects or a soundtrack in your video? The most important question to ask here is, “Am I inhibiting the original creator’s ability to earn money from this work?”. Whether or not the creator is making money from their work, you cannot inhibit their ability to do so.

Examples would include having the entire track from Justin Bieber’s 'Baby' playing in the background of your latest video. Not only would that lack a certain taste in good music but that’s just not going to fly in terms of copyright. Somebody could potentially rip his audio directly from your video, removing their need to buy his record to listen to his music. That’s a major no no.

New to creating video and want to know the basics of copyright in relation to music, footage, and images? YouTube have a great overview which is definitely worth watching to bring you up to speed:

When IS it OK to Use Another Creator’s Music in Your Video?

Using Copyrighted Music in Videos: When is it Legal?It's a complicated topic but if you want to use music that someone else has created then you'll need to know the legal implications of doing so. Obtaining permission really depends on the specific piece itself and whether it needs a license or not:

  1. In the purest sense, the only time that you do not need to secure special permissions to use a work is when that work is in the public domain. Some older works have made their way into the public domain and according to the Public Domain Information Project that includes: “Any Song or Musical Work Published in 1922 or Earlier is in the Public Domain in the USA. No Sound Recordings are PD in the USA due to a tangled complexity of Federal and State Law”. You would think the traditional “Happy Birthday” song is in that list, but it’s not. Do NOT use it!
  2. If what you are using isn’t in the public domain, you WILL need to obtain a license to use it. The more formal the license the more protected you are when using it. Also keep it mind that many recordings have not only a copyright for the song, but also for the recording of the song itself. In that case, you will need to obtain two licenses.

Music that is Royalty Free is still free to use, but it is NOT in the public domain. There is a distinct difference between the two. Permission must still be granted for royalty free recordings. Generally, these permissions are usually blanket permissions that apply to anyone though and are very easy to obtain.

Things like this would include music from the now widely used site incompetech.com, run by Kevin MacLeod. Surprisingly enough his Royalty Free music is used so often that the odds are you’ve heard something he’s made at least once. He’s the most well-known musician that you may not know.

Best Sites for Royalty-Free Music to Use in Your Video

Using Copyrighted Music in Videos: When is it Legal?Royalty free is attractive because the legal responsibilities with it are completely minimized. It is the closest you can get to public domain, yet still retain some legal rights if you are the original creator. The nice thing here is that your music or work can become widely used and gain exposure for original creator, yet it benefits the community at large with a free service. These works are free and allow you to use them without penalty or fees. Each site may have some stipulations on the way in which you use the work, so be sure to read the type of license they grant. Some good examples of royalty free music sites are:

Please Note: Royalty-free doesn't necessarily mean FREE to use - you will still have to pay something for the license. However, there are also some websites that offer free, royalty-free music sites that you could explore. If you are partnered with an MCN, some of those networks also have a royalty-free music library available to members.

Music: The Difference Between Sharing and Stealing

Using Copyrighted Music in Videos: When is it Legal?There is a very real difference between sharing someone's musical composition, and taking the same track and using it solely for your benefit, or personal gain. Let's take a look at both approaches:

  • Sharing is posting the link to your favorite artist’s latest song on your Facebook wall or Twitter page. Emphasis here is on the link. In this case, the owner retains the digital copy of the piece in question and you are simply sharing the way to find it.
  • Stealing is taking a copy of the music and loading it to your YouTube channel or Soundcloud. When you upload somebody else’s music or content to your own page, it removes the artist’s ability to monetize it and likely violates copyright.

Is Performing a Cover Version of a Song Copyright Violation?

Using Copyrighted Music in Videos: When is it Legal?Simply put, chances are yes. Of course it’s a lot more complicated than that in the long run, but realize that by its very nature a cover is your artistic interpretation of somebody else’s work. Some ways to avoid a copyright violation here include:

  • Create a cover that is transformative. That is to say, you’ve put such an original, creative spin on the piece of work that it is unrecognizable as the original.
  • Use the YouTube search feature before you cover a song to check the music rights associated with it. Doing the research will save you real problems later.
  • Use royalty free tracks that are licensed to you
  • Explore the options available to you via YouTube's own Audio Library.

What Will Happen if I Use Copyrighted Work in My Video?

Using Copyrighted Music in Videos: When is it Legal?Well, if you very, very lucky, at best, nothing will happen. But you had better hope you aren’t making money from that piece of work. One major determining factor is whether or not money is being made from the use of the copyrighted work. Make enough money and you are bound to catch the attention of somebody who wants a slice of your earnings. Some other things that could occur:

  • On YouTube, your Account may receive a strike (3 and you’re OUT!)
  • Your audio may be muted
  • Ads may be placed on your videos, the benefits going to the original artist/publisher
  • You could be sued by the owner of the work you are using

In December 2014, YouTube launched a new feature within its audio library that will give the creator a glimpse of what action the site will take against a video that uses copyrighted music as part of its soundtrack.

ContentID: How YouTube Determines a Copyright Violation

Using Copyrighted Music in Videos: When is it Legal?YouTube has a complex copyright tracking system called ContentID. It is an automated system that matches your content against a database of copyrighted material. If your video is flagged by the system, you will receive a notice and an opportunity to dispute the flag but your content may be monetized or blocked if you do not win that appeal.

You may think you just created the most amazing, original video and that there is no way for it to trip up on the Content ID system. Wrong. Did you use stock audio from your editing program? Chances are that this music may only be approved for personal use and uploading it to YouTube and monetizing it could have just violated that license. Always check the usage rights before you post content that includes something from a third party source.

What is “Fair Use?” and How Can I Benefit From It? 

Using Copyrighted Music in Videos: When is it Legal?First of all what is “fair use”? Basically fair use is a set of exceptions that limit the power behind copyrights when the usage of a piece of work is considered “fair”. A lot of the guidelines surrounding fair use are governed by the Digital Millennium Copyright Act (DMCA). Fair use is really the ultimate grey area when it comes to copyright violations, but a few guidelines from section 107 of the DMCA can help you determine if what you are doing is fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

How to obtain permission for a song?

This can often be a major stumbling block and deal breaker when it comes to using copyrighted music. It can be difficult to contact the copyright holders, which often extend much further than just the artist. If you are a musician, https://loudr.fm/ is a great source for distribution and can be utilized to manage the copyrights held by other artists.

6 of the BIGGEST Myths about Copyright, Music, and Video

Using Copyrighted Music in Videos: When is it Legal?So, know that we've looked at some of the biggest concerns regarding copyright, music and video, let's take a look at some of the biggest myths surrounding the topic. This should clear up any questions you may have, or give you the extra knowledge you need as a video creator, or marketer:

  1. Nobody has contacted me, so I must not be violating their copyright.

The fact of the matter is the internet is a huge place. Copyright can be difficult to detect depending on the power behind it, but that doesn’t mean it isn’t being violated. The longer you benefit from somebody else’s copyright, the harsher the penalty may be when you are discovered.

  1. My work is just a fan video, so I’m covered.

Maybe. This one is a little complicated. The type of use is very important, but not the only way to determine if copyright has been violated. This type of use would fall under fair use and the four points we mentioned earlier should be considered.

The only time you have a nearly full-proof chance to monetize these works is if it’s a parody. Comedy, and specifically criticism, is heavily protected by US laws.

  1. I didn’t enable ads on/monetize my video, so it’s automatically fair use.

That’s not going to work. The original copyright holder may still be able to force a takedown of your material, even when it is used completely within that law. There are a lot more factors at play in fair use than whether or not something is monetized. Not monetizing a work is a great first step to covering your behind, but it’s not the only thing to worry about. The nice thing is that you’ll generally be safe from a major lawsuit when using something properly within fair use guidelines.

  1. I didn’t see a copyright notice, so it must not have one.

Think again. In the US and most other major countries, everything created is copyrighted and protected immediately, with no action required by the creator. A notice may increase the strength of that copyright and the damages received in the case of a violation, but it is absolutely not required.

  1. I found it on the public internet, so it must be in the public domain.

Not at all. As a matter of fact chances are more likely it is copyrighted material. Postings to the internet are not automatically in the public domain and do not grant any permissions for use just by being there.

  1. I wrote a little disclaimer in my description box crediting the artist and claiming I had no intention to violate copyright laws so I’m safe.

Nope. Somewhere, someone started the idea that this would absolve you of your copyright sins, but the fact of the matter is, if you are violating copyright laws, saying you didn’t intend to violate them doesn’t absolve you and you may still be punished to the full extent of the law. When it doubt, leave it out!


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Posted in Video & The Law
About the Author -
Andy Smith is the host of ReelSEO's "How To's Day" tutorial show. He has been exploring what makes YouTube and its creators tick, on his own YouTube channel, since 2010. View All Posts By -

What do you think? ▼
  • Ramin

    Is it OK to use a (possibly copyrighted) music as soundtrack in a non-commercial video? This is for an art video not intended for sale which we plan to post on Vimeo.

  • http://www.reelseo.com/ Mark Robertson

    Thanks Hammad and Paul. That makes perfect sense now. We'll change that now.

  • http://www.hpaulmoon.com/ Paul Moon

    Big typo here, important to fix since this article is tantamount to legal advice:

    "Create a cover that is transformative. That is to say, you’ve put such an original, creative spin on the piece of work that it is nearly indistinguishable from the original."

    Makes no sense, of course.

    • http://www.reelseo.com/ Mark Robertson

      Paul, Thanks for engaging in the discussion. Couple things.

      1) We made it VERY clear that this should not be taken as legal advice and that we're not attorneys. That being said, yes - we are trying to provide advise as best as we can.
      2) I'm not sure I understand your feedback re: "typo". Is there a particular typo or are you just saying that you don't agree with "transformative"?

      • http://www.hpaulmoon.com/ Paul Moon

        You can't be serious. Just read it again. See?

        • http://www.reelseo.com/about/mark/ Mark R Robertson

          Yes I'm serious and I still don't understand your issue.

        • http://www.reelseo.com/about/mark/ Mark R Robertson

          Paul, if we changed it from "nearly indistinguishable from" to "unrecognizable as" - Would that clarify your concern?

  • Sue Obannon

    Can I use "eye of the tiger" instrumental on an educational website? It is not for
    profit or anything like that.

  • Taylor

    Thanks for the article, what about using 7 seconds of a song in an intro/outro?

    • Carla Marshall

      If it's someone else's work and you don't have permission then no.

  • Scott Broadbent

    You make an error regarding this statement, although it is not surprising because the major copyright interests try to claim way more than they are able to:

    "Also keep it mind that many recordings have not only a copyright for the song but also for the recording of the song itself. In that case, you will need to obtain two licenses."

    The error that you make is that copyright applies to the expression of an idea, and not the idea itself. The expression in this case is the "recording of the song itself". The idea part is the "copyright for the song".

    If I were to get a band together and we were to learn how to play and perform a song from Metallica or some other band we like, we are completely free and without the requirement to seek permission to perform the song, record the song, put our recording of the song on itunes.

    As long as we do not sample or use any portion of the previous band's original recording (or later re-recordings) and that it is all our own physical performances (the vocals, the guitars, the drumming, etc) that produce the song, we can use our recording in any way we see fit, because we own the copyright over our version or recording.

    The recording can only have one "copyright" for the song. It only even gets copyright protection because it was set down into a fixed form. An idea CANNOT be copyrighted. On top of that, if I were to create a completely original new song, play or perform it live but never ever record it, I do not have any copyright protection over the song at all even though I created it, because one of the requirements of copyright is for it to be written down or recorded in some way that allows a person to compare it to another version to determine whether it is infringing copy.

    Sadly, what you will find in the existing system is that those who have money and want to claim more than they actually can, will take you to court and bury you in legal fees trying to fight it.

    • http://www.reelseo.com/about/mark/ Mark R Robertson

      Scott. In terms of hitting YouTube's content ID, you may be correct. However, lyrics to a song are copyrightable and there's a big difference between composition and arrangement. I'm certainly not an attorney, but I do NOT believe that you're correct here. Heck, you can even have different words but if the arrangement is too similar, you may have to clear the rights - For example - Sam Smith's take on Tom Petty (http://www.cnn.com/2015/01/26/entertainment/smith-petty-royalties-feat/)

    • http://www.reelseo.com/ Mark Robertson

      Scott. In terms of hitting YouTube's content ID, you may be correct. However, lyrics to a song are copyrightable and there's a big difference between composition and arrangement. I'm certainly not an attorney, but I do NOT believe that you're correct here. Heck, you can even have different words but if the arrangement is too similar, you may have to clear the rights - For example - Sam Smith's take on Tom Petty (http://www.cnn.com/2015/01/26/entertainment/smith-petty-royalties-feat/)

      • Scott Broadbent

        This wasn't my original post, due to losing my entire post because of login issues...

        Lyrics if written down are copyright, because they are written down. This means that no one else can distribute in written form the lyrics without permission.
        Lyrics if recorded as audio are copyright, but only the artist's expression of those lyrics are copyright. Another artist could record their own expression and both would have copyright over their own, but not over the other artist's, nor does it lock down the lyrics, preventing others from doing the same. A million different people can record the same set of Lyrics and you'd have a million different copyrighted versions and each would be free to use their own.

        Regarding the Sam Smith example, it should be noted that Sam Smith did not even bother to fight it in court (they talk about this one minute into the video, so this doesn't prove that having a similar arrangement is an infringement.

        I also wouldn't doubt that the 3 Grammy nominations that the song got also had an impact on the claim even existing in the first place. Someone in Tom Petty's camp saw an opportunity to make money on it, and so there is naturally an incentive to push a claim even if it would fail. The fact that Sam Smith didn't even fight it becomes pure profit for them. They did nothing to create the song, but benefit from it.

        I think this is important:
        "The primary purpose of copyright law is not so much to protect the interests of the authors/creators, but rather to promote the progress of science and the useful arts—that is—knowledge."

        That's why copyright exists, but because there is a lot of money in "intellectual property" you have a lot of people who have a vested interest in mutating copyright to protect the interests and profits of authors and creators.

        The biggest problem with the existing copyright system though is that the protection that copyright provides is no longer time-limited. In exchange for producing creative works, creators get a 'time limited' monopoly to profit from their creative efforts. Due to the 1978 and 1998 copyright extension acts (expect to see Disney and other parties push for yet another 20 year extension of copyright coming up in 2017/18) the trend is that copyright no longer is time-limited.

  • Kevin Ferguson

    In the past 6 months or so, I've been noticing more and more videos using copyrighted music and in the description area, the video creator has provided not just credit, but a link to iTunes and/or Amazon where the song can be purchased (so the real copyright owner can benefit). I have yet to find an article saying that is an acceptable way around copyright infringement. Do you know how the law treats that?

    • Carla Marshall

      If we're talking about YouTube then this is the ContentID system in action. The audio has been tracked and identified as belonging to another and if that person or entity chooses to leave the video up but benefit from it themselves, the track is linked to iTunes (if applicable).

      Also, any revenue received from the ads run against the video go to the copyright owner rather than the uploader. That way, the uploader gets to keep the content public, but the owner of any copyrighted work used in the video gets the financial benefit.

  • Mo

    one thing I don't understand and still need clarity on. If doing a home video of pets, animals, children, or family functions, and the radio or television is playing in the background, why would sharing or posting such videos be an infringement when the video has nothing to do with whatever is playing on the radio or television? Also, when writers are inspired by a piece of music, and write on their blog w/that piece of music playing without any monetary gain, are they infringing upon copyrights? Wondering if people would be charged for even making a reference to a favorite song that they heard on Youtube posted by the artist themselves. I'm a writer and graphics artist myself, but somewhere there has to be some leverage. Am wondering if, instead of suing innocent persons, if Artists who post their music on websites should add a disclaimer that allows others to freely use and 'share' as long as no monetary gains exists, and credits are given to the Artist. Either way, this post was highly informative. Thank you!