The Music You Post — Avoiding Infringement

Photo by James Owen

Use of social media and content-sharing sites are at an all-time high. Unfortunately, so is copyright infringement. Many are aware of the risk inherent in posting videos online that contain music, images, and other content that doesn’t necessarily belong to the person posting the content, and many who have posted content online have received an unpleasant notification that the content has been deleted or inhibited in some way because the content was identified as proprietary to a third party. These notifications and interruptions can be irritating, and the process of “unflagging” a video can be confusing and time consuming. Here are some tips to avoid the headache and minimize the fear of posting a video that may be taken down due to potential music-related copyright violations.

First and foremost: use content that you own. Simply put, you own the content you create the moment it is recorded, written down, or “fixed” in some way to allow the content to be perceived—considering that the content wasn’t based on someone else’s work. You can freely use and exploit content that you own outright, so compose away and record something you can be proud of!

If your creative juices aren’t flowing, next consider licensing royalty-free music. This means that you will not have to pay the copyright owners royalties for recurring use of the music—rather, you usually only pay one fee up-front to license the rights to a particular song or sound effect. There are many audio licensing sites out there, like Epidemic Sound, AudioJungle, Premium Beat, or Artlist, that provide users with libraries of music and sound effects for use. Although you will be granted use of the content, you will not own the content in any way—however, music licensing is a safe alternative to risking use without permission.

Another option is to find music that has a Creative Commons license—this means that the content creator has granted permission for the public to use the artist’s content within set boundaries (e.g., whether the content can be copied, distributed, edited, remixed, sold, and how to attribute the artist when using this content). Content that is being licensed under Creative Commons can be identified by its use of the corresponding “(CC)” symbol and can be found using an advanced Google search narrowed to include certain usage rights. These types of searches are not always reliable, however, so be sure you speak with any identified content owners before using content that may not be available for use. More information on Creative Commons licenses can be found on the Creative Commons website.

Another (albeit, not always viable) solution is to secure permission to use a song from the song’s copyright owner. The obvious issue here is that you will not always be able to easily find the true copyright owner, and there may be individuals who think they own a song’s copyright, when in reality they do not. Always do your research to ensure you are dealing with the proper party, or else you may be in danger of inadvertently infringing on someone’s work. If you do end up procuring permission from a work’s true owner, include this information either in your video or in the video’s description to alert others that you have done your due diligence. Another issue inherent in this approach is that, regardless of permission or whether you have posted notice of such permission, your use may alert a website’s copyright enforcement “bot” of a potential infringement. A good example of this is YouTube’s Content ID software, which automatically scans and compares an uploaded video’s content to the files in its database of copyrighted music and videos. If any content matches copyrighted content in this database, YouTube flags the video and applies the policy chosen by the owner of the content (which could range from blocking a video entirely, muting the video, running ads in the video to generate revenue for the owner, or granting the content owner access to the video’s viewing statistics). After procuring permission to use an artist’s work, the only way to try and avoid an unnecessary visit from a copyright enforcement bot is to either lower the music’s volume during editing, and/or obscure the music in some way by overlapping it with other sounds (e.g., dialogue, sound effects, etc.). There is no hard and fast way to prevent your video from being flagged if you are using copyrighted content, and disputing a content takedown notice can be confusing and time-consuming—if this is something you are worried about, it may be best to simply record your own music. [Note: Many websites, including YouTube, also offer collections of royalty-free audio for users to incorporate into the videos they post. For example, YouTube’s “Audio Library” contains many songs and sound effects that can be downloaded for use—even for projects outside of YouTube (with limitations).]

The approach of last resort is to rely on the legal doctrine of Fair Use. This means that the user acknowledges that he or she is infringing on another’s work, but that such use of the work is “fair” because the use is primarily for educational purposes, only uses a small portion of the work, does not affect the market for the work, and/or ascribes some kind of new expression or meaning to the work. Because Fair Use is considered a defense in the copyright infringement context, it is never advisable to rely on this doctrine except as a matter of last resort. Always consult an attorney experienced in copyright law before deciding to rely on the doctrine of Fair Use, otherwise you may be faced with expensive consequences.

The landscape of copyright use, ownership, and licensing is constantly changing, but the one constant (and obvious) truth remains: if you don’t create the work yourself, then get permission first—preferably written permission.

For more information on this article and this topic, contact Charles Wallace.