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Using commercial music or video online

In previous sections we've covered how copyright law works to protect the creators, singwriters, record labels and photographers of the world, but what about the public? A lot of people we end up talking to get to hear about us because they broke a law or three, and by far the most common reasons we have to attack poor innocent little members of the public are:

• Putting copyrighted music, video or images on a website
• Sharing copyrighted music, video or images over P2P or via email
• Putting recordings on websites of themselves or their friends performing a copyrighted work

Copyright law doesn't care about your intentions, it makes all of the above illegal. It matters not one bent cent if that music file is on a fansite that says Creed is the greatest band in the universe, it's still against the law to use their music as a background sound. We know this sounds cruel, but it's pointless to be able to claim you did it 'for the right reasons'. "Sorry officer, I robbed that bank to pay my kids thru college. That's OK ain't it?".

In the USA, the No Electronic Theft (NET) Act makes it clear that you don't have to make any profit in order to infringe copyright. Just posting a file on a site, on a chatroom or via email is all you need to do to end up in jail - it doesn't matter if you try and make money from it or not.

Having said that, we all know that the web is a great place to find and share music, video and pictures. We estimate that about 97% of all the photographs on the Web are illegal copies, and about 70% of the music. Provided people follow the rules, it's great to have that stuff out there, and it helps publicity. So what are the rules, and how do you follow them? What will get you thanked, what will get you... spanked?

Rule 1: You need permission

If you want to use a copyrighted work on your website, post it in an email or share it on P2P, you need permission from ALL the copyright holders. For a musical track that will mean the owners of the original recording (the record label), the owners of the lyrics and melody (the songwriters) and maybe the owner of the actual recording you're going to use (the guy that made the MP3). They all have a stake in what you're doing and all have to agree. Any one of them can sue you, so you have to ask them all. In advance.

For commercial music, this is done by talking to the record label in the first instance. They will advise you who is responsible for licensing your intended use. The same goes for music videos or extracts from motion pictures. For photographs, you need to find and talk to the actual photographer or the agency they work for.

Rule 2: You need licenses

Money. Yup. Money. Using copyrighted work online means you're getting benefit from that work (making your website nicer is a benefit as it attracts more visitors) and they have to be paid for it. There are several systems to do this depending on where you live (see below) but in general you have to buy a license from a 'performing rights licensing agency' or PRL, who then pay the musicians and actors appearing in the work.. then you ALSO have to buy a delivery licence from a 'Production Management Agency', who then pay the people who wrote the music, screenplay or lyrics that were being performed. In some countries this can be done in one package, in others you need to get them from different places. You need BOTH, as a website is both a 'performance' of a work, and a place visitors can get 'copies'.

In the USA you will need to get a license from the record label in order to use the recording, then a second, called a DPD or Digital Phonorecord Delivery license, from the Harry Fox Agency. You will usually ALSO need a licence from the songwriter, whcih will be available from either BMI, ASCAP or SESAC. To check which you need, the best and easiest thing to do is contact the record label.

Now for the real kisser. All these licenses apply only to the USA, and to downloads made in the USA. If a British girl visits your website and downloads the music, you'll need ANOTHER license from the UK collection agency the record label and artist use. Frenchman visits the next day? More licenses. Yes, since a website can be seen from anywhere in the world, you can end up with a pile of paperwork (and bills!) taller than you are.

Rule 3: You need to track what you're doing

Most of the licenses for using music or video on websites require that you submit exact details of how many visitors downloaded the files, when, and where they came from. You need to keep server logs and send them to the people who gave you the licenses, and with many basic web-hosting plans you don't get access to these server logs. If you can't prove how many copies were downloaded then you can end up paying 'estimated' fees based on peak demand, and these will be a lot higher than you'd want!

These apply only if you're hosting files on your own server or sending out copies from your computers. So if the official website for April Livgney has an MP3 file on it, then you can LINK to that file without breaking copyright, but if you COPY it and put it on your own website, you're breaking the law without following all those rules. Of course a lot of websites don't like people linking in to their music and pictures as it uses their bandwidth, so they set their servers to prevent it. If you're planning on linking to a media file and you expect your own site to get busy, it's a good idea to contact the source site people first and check they're OK with your plan, otherwise they may just block you when they see their logs!

Webcasting

In the US, there is a special case for webcasting (non-interactive live broadcast of music on the Web), and special all-in-one licences are available to make it easy for web radio stations to pay everyone what they're owed. These 'statutory licences' are available from an RIAA-spinoff called SoundExchange, but they ONLY cover webcasting. If you offer files for download, you have to do it the hard way!

Using public-domain material

If all you want is a background tune or a stock image for your website, then there are two options. You can find material in the 'public domain' - things that are over 70 years old and out of copyright (like Shakespeare) or things where the author has decided not to claim their rights and has said people can do whatever they want with the work, no fees involved. Sometimes that's OK, but in a lot of cases it's "you get what you pay for" and all the decent stuff is protected.

The second option is royalty-free material. This is work you buy for a one-off cost, and then you have the right to use it as often as you want for no extra charge. An RF photograph may cost you $50 to buy, but it costs nothing extra to put on a website with 5 million users a month. Stock agencies like Gettyimages provide RF photographs and video as well as normal 'rights-managed' files which need licenses and usage fees.

NOTE!: Buying a CD or a music video does NOT give you the right to reproduce it, just the right to own it and listen to it yourself. Putting it on a website or playing it in a public place NEEDS A LICENSE.

If you're using royalty-free material you still can't edit the copyright information - the DMCA says that's never allowed. Even public-domain material has to keep whatever copyright information it has when you first find it - and that includes 'none'. You can't put ©2005 Joe Schmoe on Beethoven's 5th!

How we find you!

If you're using copyrighted media without the permissions and licenses, then it's really quite easy to find you. Unless your website is completely hidden, it will show up on search engines, archive services and in a whole raft of places we usually keep an eye on, from P2P networks to IRC, newsgroups and even emails. The Web isn't as anonymous as people sometimes think, and once we know which IP address you were using and when, we can make your host or service provider to tell us who you really are... from then it's simple. All this searching takes time though, and it's one of the services we provide to our clients which benefits them the most. If you're just an up-and-coming songwriter who wants to see if anyone's stolen your lyrics, it can be a horrible job even knowing where to start! We can't give out too many of our methods or help people who don't pay us the obscene amounts we charge for our services, but if you do manage to find someone who's stolen your work, actually stopping them can be a lot easier than you might think!