Let’s face it, music rights are complicated. Yes, each different kind of work listed the Copyright Act – from paintings to movies, and even architectural plans – has its own separate wrinkles and special provisions. However, music rights have by far the most complicated set of rules surrounding them. Drawing from both law and traditional industry practices, music licensing presents its own special sort of labyrinthine challenges.
First, it’s important to note that the Copyright Act distinguishes between musical works and sound recordings. The copyright in the musical work covers the music and any accompanying lyrics. It’s sort of the abstract version of the song, the kind that would appear on sheet music, indicating what notes to play and when to play them. By contrast, the sound recording covers, as the name implies, the contents of a recording, such as an MP3 file. The copyright extends only to the sounds that are captured in the recording. Therefore, it is not copyright infringement of a sound recording copyright to record your own version of a song that closely mimics the way that someone else played it. Unless the sounds were pulled directly from, say, the data in an MP3, there is no infringement.
So, now you’ve found a song that you want to use. Where do you go? Well, that depends on what you want to do with it. For example, if you just want to listen to a song in the privacy of your own home, then just go buy a copy. The copyright holder has no power to regulate this kind of “private performance” of musical works. However, if you want a “public performance,” whether it’s playing music at a café or performing at a concert, then you need to license the “performing rights.” Typically, performing rights are licensed by a performing rights organization, or PRO. The big three are ASCAP, BMI, and SESAC. However, artists are not required to sign up their music with a PRO, and for those who haven’t, the rights will have to be negotiated directly from the copyright holder.
If, instead, you want to record a cover version of a song, then you need a “mechanical license,” so named because they derive from the days of player pianos. A mechanical license grants the right to record a new version of an existing song onto a record, CD, MP3, or the like (the technical term is “phonorecord”). This is not the right to perform the song live, but to perform it in the studio and then sell copies. The mechanical license is also sometimes called the Harry Fox license because a company called the Harry Fox Agency handles a large number of mechanical rights. It is also possible to obtain a compulsory license to mechanical rights via the process specified in § 115 of the Copyright Act (17 U.S.C. § 115), if you really love to do extra work.
However, if you plan to include a piece of music in an audiovisual work (such as a film, a TV broadcast, or a video game), then a “sync license” is required, short for music synchronization license, because such a license is needed anytime the music is synched up to any sort of visual component. Any. Karaoke machines? That’s a sync license. Background music for a YouTube stream? That’s a sync license. Using music in an ad? That’s a sync license. Those clips of pop songs that play right before a basketball game cuts to commercial break? Oh, you better believe that’s a sync license. Unfortunately, there is no central clearinghouse for sync rights. Music publishers often hold these rights, but not always. There are agencies that purport to offer sync licenses, but they may not have the rights to the song that you want. Otherwise, you have to track down the copyright holder.
Then there are “grand rights” (because everything up to now has just been small rights, apparently). Grand rights come into play when including a musical work in a dramatic performance, such as a stage play or ballet performance. Normally, dramatic works, by legal definition, include all accompanying music. So, all of the songs in Phantom of the Opera are already included when you get the rights to put on a production of Phantom. Grand rights come into play when incorporating an existing song into a new dramatic work. The “jukebox musicals” of recent years – such as All Shook Up (Elvis) or We Will Rock You (Queen) – are examples of when a grand rights license is needed. Like with sync licenses, there is no one-stop shop for grand rights. The best bet is to contact the publisher or the composer.
Please note that this is just the bare-bones basics of some of the licensing that goes on. There are further issues and additional industry customs that can further muddy the Muddy Waters. However, an important first step is knowing what you need and where you might be able to find it.