Your company produces a short video. To make the video more interesting, your company adds a popular song as a soundtrack. Your company now wants to post the video online. Any problems with that?
Yes, a few. There are a few music licensing issues you should address before posting that video.
NOT ROCKET SCIENCE; BUT NOT INTUITIVE EITHER
While music law is not rocket science, it is not always intuitive. The music license is called by a different name depending on (i) whether you are using the song, the sound recording or both and (ii) how you are using them.
THE COMPANY’S ASCAP/BMI LICENSE DOES NOT ADDRESS ALL THE ISSUES
Companies mentioning this video issue often wonder if they can rely on their existing license with ASCAP or BMI for posting of the video. No, they cannot, because ASCAP and BMI issue only public performance licenses. For imbedding a recording of a popular song into a company video, the company needs both a synchronization or “synch” license (for the song) and a master use license (for the sound recording). When you obtain synch licenses and master use licenses, any necessary permission to render a public performance should be incorporated into the synch license or master use license.
MAY THE COMPANY POST THE VIDEO ONLINE?
There might be some opportunities for the company to post the video on YouTube through YouTube’s Content ID System which permits postings of some videos with unlicensed music (by monetizing those videos for the benefit of the copyright owners). Otherwise, posting a video with unlicensed music on the company website or social media account can yield a DMCA take-down notice (along with a copyright strike against your social media account) and, in a worst case scenario, can generate a copyright infringement lawsuit against the company.
CONSIDER STOCK MUSIC INSTEAD
I characterize obtaining synch and master use licenses for commercially popular music as quite difficult – and expensive. That’s why I often recommend that clients consider the production music library route as part of creating ads with no copyright or trademark problems. Using music under a Creative Commons license is also a possibility to explore. However, Creative Commons materials typically come with no representations, warranties, or indemnifications and, for that and other reasons, using Creative Commons materials is not always risk-free.