Cinema Law: Music Licensing for the Internet?

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Q: There’s a popular song I want to use for my trailer and post online. How does music licensing work for the Internet? Sites like YouTube? IMDb? The movie’s own official site?

A: The first thing anyone seeking to license a recorded piece of music must understand is that in every recording there exists two separate and distinct copyrights, and each of these copyrights are often owned by separate individuals or entities. The first copyright is the copyright in the musical composition itself, which consists of the music and lyrics. Such copyrights are referred to in the music industry as the publishing rights. The second copyright is the copyright granted to the recording artists’ rendition of the musical composition as embodied in the physical recording of the composition, known as the sound recording. Such copyrights are referred to as the master rights. For example, Guns N’ Roses wrote and recorded Welcome to the Jungle in 1987. Accordingly, GNR owned the copyright in the musical composition itself and in their unique recorded version of the composition. However, typically the recording artist assigns the sound recording to the record label while maintaining the publishing rights for itself (which the artists generally assigns to a publishing administrator). Now assume that the White Stripes’ next album contains a cover recording of Welcome to the Jungle (okay, maybe wishful thinking, but this lawyer certainly would enjoy that). The White Stripes would own the copyright in their unique recording of the song, but GNR would still own the copyright in the composition and the band would receive a royalty from every sale of the cover version.

In order to combine a recording of a song with video—regardless of the medium in which the video will appear (i.e. on the Internet, on T.V., in a movie, etc.)—you must obtain two licenses: One for use of the musical composition and one for use of the sound recording. The license for the composition is referred to as synchronization license, while the license for the sound recording is referred to as a master use license. Using the example above, if you wanted to use The White Stripe’s version of Welcome to the Jungle, you would need to obtain a synchronization license (which refers to the process of “synchronizing” a musical composition in timed relation to the visual images) from GNR for use of the musical composition and a master use license from The White Stripes for use of the sound recording (again, assuming neither of them have assigned their copyrights to someone else).

So what does all of this mean for you? You need to seek out the owners of the copyrights in the song you want to use, explain to them what your intended use is and negotiate a license with them for such use. You can generally find this information by accessing the website for the United States Copyright Office and searching its records for the name of the song. While the owner of a musical composition cannot say “no” to someone who wants to record a cover of the composition, the decision regarding whether or not to grant you these licenses for use with video is completely within the discretion of the copyright owners. Accordingly, before you enter into a license agreement for use of the composition and/or the recording in a film, make sure both copyright owners are on board.

Gregory Gabriel, an attorney at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, focuses primarily on music, entertainment and intellectual property litigation with extensive experience in copyright, trademark, right of publicity issues and contract issues. His intimate understanding of the law in this area has resulted in efficient victories for our clients. Gabriel recently assisted in the defense of Sanctuary Records against a multitude of claims by Mike Love from the Beach Boys in two separate lawsuits.  Love’s complaints included claims for conspiracy, right of publicity violations as well as trademark and copyright infringement among other things. Gabriel helped obtain a dismissal of every one of Mr. Love’s claims by motion, which resulted in a published opinion: Mike Love v. The Mail on Sunday, 473 F.Supp.2d 1052 (C.D.Cal. 2007).  In addition, Gabriel helped obtain an attorneys’ fee award in favor of Sanctuary in both cases.

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