This legal video question comes form Malia Leinau Meyers of Malia Professional Photography, out of Kailua, Hawaii, concerning the use of copyrighted music in her video montages of photography work. Attorney Gordon P. Firemark explains what you need to know about copyright infringement, getting proper permissions, and licensing terms – all why keeping costs down and staying legal!
The following article has been revised and modified since it's original publication.
I have a question about the legality of adding music to online slideshows. I own a small photography business and I've recently decided to offer a slideshow of my clients' photographs. How would I add music to this without breaking the law?”
Hi Malia! First I want to let everybody know that does outstanding photography work. She did our own honeymoon in Hawaii, and threw in a video of us taken with her DSLR camera!
Why So Many Professional Photographers and Videographers Are Using Other's Copyrighted Music
Malia raises a good question. There are a lot of professional photographers and videographers who like who like to use background music in their videos or other multimedia pieces, both in their portfolio websites, or 3rd party video sharing sites. They do this for obvious reasons such as promoting their own work, and giving their clients an enjoyable video experience.
What You Need to be Able to Legally Add Copyrighted Music, Sound Effects, or Other Copyrighted Audio to Your Online Video or Professional Photo Slideshow
Please keep in mind that I am not a lawyer, and even where I am quoting a professional attorney in his field of expertise, everything in this article is for general informational purposes only. It should not be construed as, or substituted for, professional legal advice. For that I strongly recommend you contact an attorney!
Gordon P. Firemark, an entertainment and media lawyer based out of Los Angeles, California, explained to me that music is a particularly tricky area. That's not only because most music is protected by copyright, but because "there are actually two copyrights for each song, and in most cases the artist doesn't own either of the copyrights," he says. There is...
- One copyright for the song, and;
- Another copyright for the recording of the song, itself.
"So for newer compositions, it's actually necessary to obtain two licenses. These are obtained from the music publisher and record label, respectively" says Gordon.
When You Don't Need Permission To Use Other's Music in Your Video
The only times you don't need third party permission is if it's public domain music; or if you've written, performed and recorded the material yourself, says Gordon. "While older (pre 1900), compositions are in the public domain, the more recent recordings are, in most cases, still covered by copyright law."
As a professional video marketer who deals with media producers, I'll usually have work-for-hire written agreement with the recording artist for any newly produced soundtrack for a video. My written agreements also specify any and all uses I plan to make, or foresee myself doing. That also includes if I want to re-edit the recording artist's original soundtrack they made for me. (Some licensing agencies, including stock audio agencies, will either prohibit you from doing that, or charge you extra.)
Be Sure to Include Internet Rights with Music Licenses for Online Video
"Be sure, when obtaining licenses, to include a request for Internet rights. Most licenses cover only the synchronization of the music with the images in the video, but don't automatically include the right to stream the video, or make it available for download." says Gordon.
How YouTube Handles Copyright Infringement of Music in Online Videos
For video you put on YouTube that has recognizable copyrighted music from one of their content partners (usually a major recording studio), YouTube at the request of the recording label, may do one of the following three things:
- Remove your video entirely from your account
- Mute the audio on your video or;
- Allow the copyrighted music or other audio in your video, with additional links in Amazon.com and iTunes to the original source (available for purchase).
Below is Malia Lenau Meyers' YouTube photo slideshow of my honeymoon, which I put up on my own personal YouTube with an "unlisted" link. (Note that it's not a private link, so even though it doesn't show up in a search on YouTube or anywhere else, you can still watch it from the URL.)
YouTube's "Audioswap" Feature Available For Professional Videos
Audioswap is a free feature in YouTube that allows you to automatically add music or soundtrack to any of your YouTube videos, from their pretty extensive library of music genres. Here is the good news: An authorized representative from YouTube just informed me that the entire Audioswap library is equally permissible for professional use!
Simply Giving The Recording Artist Label and Credit in Your Video Isn't Enough
I once had someone ask me, could they avoid having to get the recording artist or copyright owner's permission in their online video featuring the artist's soundtrack, as long they were giving credit somewhere in the video?
I never do that myself, and YouTube won't treat it as permissible, either (unless the YouTube Content Partner who owns the copyright already has an arrangement in place to allow for it.) Simply giving the copyright owner credit in your photo slideshow video, doesn't ever substitute for getting actual permission to use their work. That especially applies with online video, even if make it unlisted and on a private URL.
Performing a Cover Song In Your Online Video Requires Permissions As Well
Even if you're doing your own performance, you still need permission from the original recording artist or licensing agency acting on their behalf. Recording a "cover" of another artist's song falls under the legal protection of "mechanical rights" – which includes reproducing derivatives of a copyrighted work.
Music in your Computer Software Program May Not Be Allowed for Professional Use!
So what about the music already provided in computer video or photo slideshow software? Like say, iPhoto or iMovie for the Mac? Can you take that for my own professional use?
Well, people sometimes get confused with a license for personal use of a musical soundtrack versus a license for professional use. For example, the music you may get included in a photo slideshow program that's all copyrighted music and you're only permitted a license for personal use. You do not have the permission to create a photo slideshow, video, or anything other multimedia using that copyrighted music, if you are using it for any commercial or professionally related purposes, including self-promotion. Even sending out something as seemingly harmless as a photo slideshow Christmas card to your clients and business colleagues could be treated as an infringement!
"Educational" Videos Don't Get a Pass on Copyright Use
As the School Video News Website reports, just because you're producing a video either for a school or other educational institution, even for a not-for-profit organization, does not mean that the copyrighted music content is for educational purposes. It is considered an "ancillary" (i.e., supportive) use, which still makes it a non-essential item to the educational purpose of the video itself.
Remixes May Not Be Allowed With 3rd Party Stock Audio Sites
So can edit or remix the original audio track you purchased a license for to use in your professional video or photo slideshow? Well,your licensing agreement with anyone should state whether you can or can't do that. Some soundtrack and audio stock footage companies like Sound Ideas®, stipulate in their end user license agreement that you cannot "change or alter in any way an original music composition owned or represented by Sound Ideas (for example, by adding instruments or lyrics) without the prior written consent of the owner." What that means is re-mixes aren't allowed unless you receive an additional permission on top of your standard licensing agreement.
My Own Professional Marketing Experience on Copyrights, Permissions, and Licensing with Music and Other Audio in your Professional Videos and Photo Slideshows
I will take great care to repeat myself here: I am not a lawyer, and nothing here should not be construed as, or substituted for, legal advice. I'm speaking here as a marketer with professional experience working with online video projects involving music soundtracks and other professionally recorded audio. Your own experiences may vary!
- Browse stock footage websites. They have a wide selection at a fraction of the cost, and will typically be just as good as anything you could get on a custom arrangement. Some websites offering a wide library of music, sound effects, and other professional-quality audio for licensing include: istockphoto.com, gettyimages.com/music, royaltyfreemusic.com, musicbakery.com, and sound-ideas.com. (Thanks to our audience members for posting their own recommendations of stock audio footage websites in our comments section of this article!)
- Have a written agreement that covers all planned and possible uses. Any transformation of the original audio should require something in writing saying that you reserve the option to do so.
- Always get permissions in writing. Remember, this isn't the same as personal or other recreational use on YouTube or what you may put up anywhere online. If you're doing it for any professional purposes, you need to have a written agreement with the original copyright holder (such as the artist), or whoever their licensing agency may be).
- Search music licensing agencies. If you don't already know who to ask for permission, check out the Copyright Advisory Office for Collective Licensing Agencies. Look under the section marked "Musical Works: Performance Rights.” (If you're planning on doing a cover of someone else's copyrighted music, look under "Musical Works: Mechanical Rights”). Also, if you can't find a matching agency on there, just do a Google search (or your search engine of choice) with a query of the name of the artist/song, and the term "licensing" or "licensing information.”
- Consider YouTube's Audioswap. Granted, you are limited to using the audio as-is (no remixing or other editing), and it eliminates whatever background or foreground soundtrack you may already have. However videographers and photographers doing slideshows should find it advantageous to use in at least some circumstances for both client and portfolio display.
Thanks to Malia Leinau Meyers for her Legal Video Question!
And Thanks To Gordon P. Firemark for His Legal Video Information!
Gordon P. Firemark, entertainment and media lawyer based out of Los Angeles, California. Gordon's credentials include: Producer and host of Entertainment Law Update, a podcast for artists and professionals in the entertainment industries; Author of The Podcast, Blog and New Media Producer's Legal Survival Guide, and he teaches Business Law at Loyola Marymount University, and Theatre Law in the innovative Online Entertainment LLM program at Southwestern Law School.
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