BMI and the Radio Music License Committee announced a settlement of their rate court litigation over the royalties that commercial radio will pay for the public performance of musical compositions licensed by BMI.  While we have not yet seen the agreement, the press release already raises one issue likely to sew confusion in the broadcast industry – the extent to which the agreement allows the use of music in podcasts.  While the press release says that the BMI license includes the use of music in podcasts, radio stations should not assume that means that they can start to play popular music in their podcasts without obtaining the rights to that music directly from rightsholders.  They cannot, as BMI controls only a portion of the rights necessary to use music in podcasts and, without obtaining the remaining rights to that music, a podcaster using the music with only a BMI license is looking for a copyright infringement claim.

So why doesn’t the license from BMI fully cover the use of music in a podcast?  As we have pointed out before, a broadcaster or other media company that has performance licenses from ASCAP, BMI, SESAC and even GMR does not get the right to podcast music – nor do the SoundExchange royalty payments cover podcasts. These organizations all collect for the public performance of music. While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to the reproduction and distribution of the copyrighted songs and the right to make derivative works – all additional rights given to copyright owners under the Copyright Act. These additional rights are not covered by the public performance licenses from ASCAP, BMI, SESAC, GMR and SoundExchange, nor are the rights to use the “sound recording” or “master” in the podcast. What is the difference between these rights?
Continue Reading BMI Settlement of Royalty Battle with RMLC to Include Music in Podcasts? – Not So Fast….

Next Wednesday, July 25, I will be speaking at the Podcast Movement Conference in Philadelphia, as part of the Broadcasters Meet Podcasters Track, discussing legal issues that broadcasters need to consider as they move some of their content into podcasts. One of the topics that I will be discussing will be the music royalty obligations of podcasters who use music in their programs. A month ago, we wrote about how broadcasters’ streaming royalties are affected by smart speakers like the Amazon Alexa and Google Home, as these speakers play the digital streams of a radio station’s programs where SoundExchange royalties must be paid, as opposed to the over-the-air signal of the station, where no such royalties are owed. These smart speakers may have an impact on podcasters royalties, affecting who needs to be paid in connection with the use of music in podcasts.

When I initially started to write about issues of music use in podcasts, my emphasis was on the need to secure direct licenses from performers and composers (or their record companies and publishing companies) for the rights to make reproductions and distributions of music in podcasts. When digital content is downloaded, it triggers rights under copyright law implicating the reproduction and distribution rights of copyright holders (see our article here), as opposed to their public performance rights – the rights with which broadcasters are most familiar as those are the rights that they obtain when paying Performing Rights Organizations ASCAP, BMI, SESAC and GMR in connection with their over-the-air broadcasts and those PROs plus SoundExchange in connection with noninteractive digital streaming. When podcasts were something that were downloaded, just like the purchase of a download of a song from the iTunes music store, it was the reproduction and distribution rights that were triggered, and conventional wisdom was that the PROs had no role to play in the licensing of downloaded media. As technology has changed, the analysis of what rights you need to use music in podcasts may well be changing too. The direct licensing of music for your podcast is still needed – but a public performance right may well also be necessary.
Continue Reading Hey, Alexa, How Are Your Affecting My Podcasting Music Royalty Obligations?

Last week, I listened in to presentation by RAIN News providing an excellent overview of the digital music industry (their Whitepaper setting out the findings reported during the presentation is available here).  One statement in that presentation suggested to me today’s topic – the use of music in podcasts.  In the RAIN presentation, a statement was made that most major podcasts are spoken word, but no explanation of that fact was provided. One of the biggest reasons for the lack of music in podcasts has to do with rights issues, as the royalties paid to SoundExchange and even to ASCAP, BMI and SESAC don’t apply to traditional podcasts meant to be downloaded onto a digital audio recording device like an iPhone or any other smartphone.  We wrote a warning about this issue a couple of years ago, but as the popularity of podcasts seems to once again on the rise, the warning is worth repeating.

The rights that a broadcaster or digital music company gets from ASCAP, BMI and SESAC (commonly called the “PROs” or performing rights organizations) deal with the public performance of music.  The PROs license the “musical work” or “musical composition” – the lyrics and the notes that make up the song.  They do not license particular recordings of the song.  As we have discussed before in other contexts, a public performance is a transmission of a copyrighted work to multiple people outside your limited friends and family (see our discussions here and here).  SoundExchange’s royalties also deal with public performance – but it is licensing the public performance of the sound recording – the words and music as recorded by a particular artist.  And SoundExchange only licenses such performances where they are made by a non-interactive service – where the user cannot determine what songs it will hear next (and where the service meets certain other requirements – see our article here for some of those additional requirements).  Podcasts don’t fit within the SoundExchange limitations, and while there has been some debate about whether the PROs have any licensing role in the podcast world (see this article), additional rights from music publishers (who usually control the musical composition copyright) are also needed.
Continue Reading Beware of Music in Your Podcasts – SoundExchange, ASCAP, BMI and SESAC Don’t Give You the Rights You Need

In a lawsuit filed last week (see the complaint here), Flo and Eddie, the artists who were behind the 1960’s band The Turtles, claim that Sirius XM has infringed on the copyrights in their songs by allowing copies of these recordings to be made by the satellite radio service and in certain Internet offerings that Sirius XM makes available. The article in THR.esq (the Hollywood Reporter’s legal blog) that first announced the lawsuit talks much about the ambiguous status of pre-1972 sound recordings under Section 114 of the copyright act (the section providing for royalties for the public performance of sound recordings by digital services), and seems to view the suit as a reaction to the decision in the satellite radio proceeding before the Copyright Royalty Board finding that Sirius XM owed no performance royalty to SoundExchange for its playing of pre-1972 sound recordings (see our article about that decision). As pre-1972 sound recordings are not entitled to Federal copyright protection, the Board decided that there could be no payment due to SoundExchange (which collects royalties for payments made under Section 114) as there was no Federal right. While that point seems to be well-established, a close reading of the complaint makes it appear that it is not the public performance that is the principal basis of the lawsuit, but instead the copies that are made in the digital transmission process and by certain features of Sirius’s Internet streaming services that allow the download or on-demand playing of their digital streams.

As we have written before, pre-1972 sound recordings were left out of Federal statutes as, until 1972, sound recordings (a specific recording of a song by a particular artist) had no protection at all under Federal copyright law. As these sound recordings had no Federal protections, state laws were adopted – principally to prevent bootlegging or other unauthorized copies of such sound recordings from being made and distributed. As there was not, and still is not, a general public performance right in sound recordings, there has been little in the way of court cases suggesting that pre-1972 sound recordings have rights that other sound recordings do not have, e.g. a general public performance right. If the Flo and Eddie suit were really alleging that there is a public performance right in pre-1972 sound recordings, then seemingly every restaurant, bar, or stadium that plays the original hit versions of Good Vibrations, Rock Around the Clock, Johnny Be Goode, the Twist or the Turtles’ Happy Together could find themselves looking at potential liability for public performance of these sound recordings. Certainly, these state statutes, many of which have been around for decades, did not contemplate the exclusively digital public performance right that exists for post-1972 sound recordings, which was not adopted until the late 1990s. So, if the plaintiffs are asserting that there is a public performance right inherent in these statutes, it would seem that it would have to be a general public performance right. But it sure seems difficult to believe that courts would find ambiguous state statutes adopted to prevent illegal copying created a public performance right where none has ever before existed in the common law of the United States.


Continue Reading Flo and Eddie Use State Laws on Pre-1972 Sound Recordings to Target Certain Sirius XM Services

Using music in commercials is not as simple as just paying your ASCAP, BMI and SESAC royalties.  While many broadcasters think that paying these royalties is enough to give them the rights to do anything they want with music on their stations, it does not.  The payments to these Performing Rights Organizations (PROs) only cover the right to publicly perform music, i.e. to broadcast it.  They do not give you the right to take the music and "synchronize" it with other words or video material, e.g.  you cannot put music in a recorded commercial or otherwise permanently fix it into a recorded audio or video production.  Instead, to make such a production, the producer needs to get the rights to both the underlying musical composition (the words and musical notes) and, if you are planning to use a particular recording of a song, the rights to use that particular recording ( the "sound recording" or "master recording").  Getting these rights may very well require that you deal both with the record company or performing artist whose recording you plan to use, and the publishing company that represents the composer of the music.  And, as some artists may have concerns about having their music used to pitch some products, getting the rights to that artist’s version of a particular song may not be easy. 

Even using the tune of a familiar song in an advertisement, with different words, is not permitted without getting the rights to do so from the publishing company.  A copyright holder in a musical composition has the right to prepare "derivative works" of that composition.  A derivative work is one that uses the original copyrighted material, but changes it somehow – like putting new words to an old tune.  Many think that "fair use" permits the making of a parody of a song, so they are allowed to use the tune as long as they produce a new version that is funny.  However, in the copyright world, fair use is not that simple.  A parody, to allow use of the original tune, must be making commentary or criticism of the original song.  Being independently funny or amusing, or otherwise dealing with some independent social or political issue, does not give you the right to use the music without securing permission from the composer of the music first.  A recent story in the Hollywood reporter’s legal blog, THR,esq.com, told the story of a Congressional candidate, Joe Walsh, who thought that it would be cute to use the music of former Eagle Joe Walsh, to make fun of Democratic politicians.  As set out in that story, Eagle Joe Walsh’s attorney did not find the campaign song very funny, and sent a very strong letter objecting to that use (the LA Times site had at one point had a link to a video of a band playing the candidate’s version of the Joe Walsh song "Walk Away", but it now says that the video has been taken down due to a copyright objection). Don’t let your station be the recipient of such a letter – get the rights to use music in commercials or other productions. 


Continue Reading Using Music in Advertising or In a Video Production? Secure the Necessary Rights – ASCAP, BMI and SESAC Licenses Are Not Enough