Music, Copyright & Youtube: Fair Use, Public Domain & DMCA

The aim of this article is to help you better understand the copyright principles, such as fair use, public domain and creative commons licensing, that you need to be aware of when including music in your YouTube videos. At the end of the page, there are also a few links regarding where to find music that you can legally use as background music in your video.

Music copyright laws were not set up to accommodate today’s social media landscape, in which hundreds of thousands of amateur and semi-professional videos makers are creating works that can be viewed almost anywhere in the world. The relevant laws and music licensing processes tend to be complex, restrictive and ambiguous, best to be dealt with by a media company’s legal team, yet here we all are making videos, so until the laws change, we better learn more about our rights and responsibilities. This page is long (sorry), but only represents a summary of the main issues. A lot of people on the Internet seem to be basing their advice on what they would like copyright laws to be rather than on what the laws really are, so there is a lot of bad advice out there. My approach is to err on the side of caution.

If you have a specific question, you can check the list of questions below or send your question via the comments sections.

1. Music Copyright Basics
1.1 What parts of the song are copyrighted?
1.2 Which country’s copyright laws would I be following?
1.3 If I wanted to use copyrighted music legally, what kind of license would I need?
1.4. What is copyright free-music?

2. Public Domain
2.1 What is public domain?
2.2 How old is old enough?
2.3 Why is a music publisher saying they own the copyright to my recording of a work by Beethoven?
2.4 What is copyfraud?
2.5 Is their any danger if I use pre-recorded audio loops in my music?

3. Creative Commons
3.1 What is Creative Commons?
3.2 Am I safe if use Creative Commons licensed songs?

4. Fair Use
4.1 What is fair use?
4.2 What are the criteria for determining fair use?
4.3 What about parody?
4.4 What about mashups and anime music videos (AMVs)?
4.5 What about cover versions?
4.6 If I use a karaoke track of a cover song, add my own words and upload to YouTube, is that allowed?

5. YouTube Policies
5.1 What is YouTube’s policy concerning copyrighted music?
5.2. What can you do if you receive a copyright claim against your video?
5.3 My video has been deleted: DMCA and the counter-notification process
5.4 So, if I post something and don’t get a notice then I am safe, right?
5.5 I got a notice about my video saying that someone is claiming copyright, but that I don’t have to do anything. I’m safe, right?
5.6 I got a YouTube copyright strike! Will it ever go away?
5.7 Can I cheat YouTube’s content match system?
5.8 Is it OK if I use copyright-protected music without permission as long as I post a statement saying I do not own the music and I properly credit the artist?

6. Licensing
6. Can I license music from a pop star?

7. Free Music Resources
7. Where can I get music to use as background music?

1.1 What parts of the song are copyrighted?

The composition (including the music and any lyrics) and recording are protected by copyright. The purpose of copyright is to try to ensure people responsible for making the music can earn a living from their work. It is important to note that the composition and recording are covered by separate copyrights, so even if you were to change the words to the song and record all the instruments yourself, the music (melody, harmony and basic arrangement) is still protected by copyright.

Things that might break copyright laws would include:

  • Playing a song from your favorite band as background music in your video
  • Uploading your own cover version of that song
  • Uploading an instrumental version of the song
  • Posting the entire lyrics on your website
  • Uploading a video that contains a song playing in the background on a radio

Of course, this kind of stuff can be seen all over YouTube. That, however, does not mean that those videos are not in breach of copyright law. You may do the exact same thing as a hundred other videos on YouTube and find that your video has been banned and your account is in danger of termination. With YouTube’s current system, any time you upload anything that is copyrighted, there is a risk that you will earn a copyright strike. If you accumulate three strikes, your account is terminated.

The last item on the above list of copyright infringing practices—uploading a video that contains a song playing in the background on a radio—catches many people by surprise. The audio is often of low quality, so it is not like anyone would download it, and in many such cases, the music was recorded by accident. There is no way your use of the music would affect the earning of the artist; however, this does not give you the right have the song playing in your video. One of the purposes of copyright (besides trying to protect artists financially) is to give artists control over how their work is used, and not every artist wants his/her music playing in an advertisement, in a movie or in your home video of a baby dancing.

1.2 Which country’s copyright laws would I be following?

Good question. As far as I know, the answer to this has not yet been determined. Is it the country in which you live, the country in which the work was first published, all the countries your video is being seen in, the country where YouTube’s head office is located or even the countries in which the YouTube servers reside? There does not appear to be a definitive answer at the moment (More information: Copyright: Choice of Law and Jurisdiction in the Digital Age).

In many ways, current copyright laws are unsuitable for how people are using the Internet. If you are uploading to YouTube, allowing your videos to be accessed around the world, it would be a good idea to make sure your work is at least in line with American copyright laws, which are already quite strict. If you want to be especially safe, can also try to make sure that your work is in line with the laws in other jurisdictions (e.g., the European Union).

1.3 If I wanted to use copyrighted music legally, what kind of license would I need?

The different kinds of music licenses and royalties are introduced here: www.publicdomainsherpa.com/public-domain-sheet-music.html). Basically, there are three kinds:

  • Mechanical license (giving you the right to publish, distribute and/or sell your own audio recording of a copyrighted song—an audio-only cover version)
  • Synchronization license (giving you the right to set your cover version to video and publish the video). That is, you have the right to use in your video the musical composition, but not the recording.
  • Master Use license AND Synchronization license (giving you the right to use an existing copyrighted recording—Master Use—of a copyrighted song—Synchronization—in your video). If the same person(s) holds the copyright to both the composition and recording, these licenses can be combined into a single ‘Synchronization and Master Use’ license. If you want to use a recording of a song that is no longer protected by copyright (e.g., a Mozart piano sonata), you would just need the Master Use license.

To legally sell your cover version of a song on iTunes or post your audio-only cover on Bandcamp, you would need the first. To legally upload a video of your cover version, you would need the second (though almost no one will actually obtain this). To legally upload a video that contains an existing audio recording by your favorite artist, you would need the third. These licenses are discussed in more detail towards the end of this page. Getting a Mechanical license is straightforward, but Synchronization licenses and Master Use licenses are not always easy to obtain (if there are a few different songwriters, you would need to negotiate a fee with each one!) and Master Use licenses are typically very expensive.

Of course, if an up-and-coming performer or composer is looking for free publicity, it never hurts to ask him/her to just give you written permission to use the song.

1.4 What is copyright-free music?

I think people who use this term really mean “music that is in the public domain”.

2.1 What is public domain?

Once a work is old enough, it enters the public domain and can be freely distributed, performed and recorded without you having to obtain a license or pay royalties.

Some people have the misconception that if something is posted on YouTube, it becomes a public domain work. This is a completely wrong idea.

Composers and musicians may release their work into the public domain at any time, meaning they give up all control over the work. This, however, is extremely rare.

Also, people tend to forget that the composition as well as performance enjoys copyright protection; therefore, while a Beethoven composition will be in the public domain, a recorded performance of this work would most likely NOT be in the public domain.

2.2 How old is old enough?

The laws that govern exactly how old a musical work must be before it enters the public domain differ from country to country and also tend to become more restrictive over time. As new laws are passed, copyright terms tend to be longer and longer as evidenced in this video that is amusing and disturbing in equal measure: Copyright: One Day Less than Forever.

A work may be in the public domain in one country while still being under copyright protection in another country. For example, musical works published in America before 1923 are in the public domain. For works published between 1923 and 1977, they enter the public domain 95 years after their initial publication. And for works published from 1978 on, they are protected for 70 years after the death of the composer (if there is more than one composer, you start counting after the death of the last one). To make matters worse, a legal technicality means that most recordings of music in the US will not enter the public domain until 2067! (www.publicdomainsherpa.com/public-domain-sound-recordings.html). The exact details for when a work enters the public domain in the USA are here: copyright.cornell.edu/resources/publicdomain.cfm

In other jurisdictions, the copyright term may be different. For example, in Canada and Hong Kong, works enter the public domain 50 years after the death of the composer; while in European Union countries and Russia, the figure is 70 years. It is possible that your video might include music that is in the public domain in Canada, but not in European Union counties, so YouTube would be within it’s rights to block your video in those countries.

At the moment, I am recording one of Sergei Rachmaninoff’s preludes (Op. 23 No. 6) and posting it to YouTube. The piece was published in 1903, so it is in the public domain in America. Rachmaninoff died on 28 March 1943, so that makes it in the public domain in Canada, but not in the EU (Note: At the time the article was first posted, it was not, but now it is).

2.3 Why is a music publisher saying they own the copyright to my recording of a work by Beethoven?

To complicate matters, most classical musicians play from sheet music, which is itself copyrighted by publishing companies. Though a composition may be in the public domain, a new arrangement of the composition (e.g., a saxophone quartet version of Pachebel’s Canon) would be considered a derivative work and would be protected by copyright law. It is not clear how substantial the changes must be in order for the new version to be considered a derivative work. Would adding more detailed articulation and dynamics make it a new work? Probably not, though sheet music publishers may disagree (this issue is explained in more detail in the second part of the Public Domain Sherpa link:  www.publicdomainsherpa.com/public-domain-music.html). If you are in a school symphonic band or orchestra, it is very likely that whatever you are playing has been heavily adapted and therefore is NOT in the public domain.

This is why when you post your own performance of a classical piece or an old folk song, you will sometimes get Content ID matches or copyright claims even though your work is definitely in the public domain. In most cases, the claim will come from a legitimate publishing rights collection agency that is making the claim on behalf of a music publisher. They are basically claiming that they own the performance rights and reproduction rights to their ‘new’ version of the work. It is up to you whether you want to challenge their interpretation of copyright law.

In some cases, however, when you get a copyright claim notice for a public domain work, you might be the victim of something known as copyfraud.

2.4 What is copyfraud?

Copyfraud is a kind of abuse of copyright. In some cases, copyright claims on public domain music are completely spurious—simply the work of con artists trying to monetize as many videos as possible. A company which is now causing a lot of grief on YouTube is GoDigital MG (Media Group), which seems to be combining two roles: legitimately collecting advertising revenue for copyrighted works while also making fraudulent claims on public domain works and songs that include licensed loops from software like GarageBand. This problem is discussed in detail here: YouTube Copyfraud & Abuse of the Content ID System

Why does YouTube allow this practice? Well, if advertisements are put beside and over your video, part of the money collected will go to the copyright holder and part will go to YouTube. YouTube benefits financially from false (and therefore illegal) copyright claims, so there is not much incentive for them to stop.

2.5 In my songs or videos, I sometimes use audio samples from purchased collections or that come with video editing or music recording software. Is there any danger if I post these songs/videos to YouTube?

Yes. There are a lot of people making music almost entirely from pre-recorded audio loops or who use some loops in their songs (not everyone has a drummer on hand!). These loops can come with software like GarageBand, Cakewalk, Final Cut or iMovie or they can be purchased in collections (e.g., SoundPool Sony, Cyclicks).

The most common problem occurs when someone else uses the same loop in his/her song and then has that song entered into YouTube’s Content ID Match system. The other person can basically end up claiming copyright over all songs containing that loop, including yours. Of course you can dispute this claim, but if the other person insists his/her work is entirely original, your dispute may fail. At the moment, I am disputing such a claim by Believe a music publishing organization that is becoming notorious for their false Content ID matches (view the YouTube Forum Discussion). As so many problems with copyfraud and false Content ID Matches can be traced to a handful of companies (e.g., GoDigital MG, Believe), it would be easy for YouTube to crack down on common frequent abusers, yet it is rare that action is ever taken.

If you are planning on monetizing your videos or selling your music, you better carefully read the terms of use of the loop packages. For example, the loops that come pre-packaged with Magix Music Maker (Soundpool Collection 17 or above) are not intended for commercial use and you would need to buy an additional commercial licence for such use. In contrast, loops from earlier collections from the same company (e.g., Soundpool Collection 16) are royalty-free and can be used commercially in original compositions.

If you are a composer/musician that uses loops extensively, it would be irresponsible to have collection agencies like CD Baby or Believe administer the copyright for your work and enter it into YouTube’s Content ID Match system. Just don’t do it.

Similarly, some video makers make use of the background music sample provided in video editing software programs. These songs may also get incorrectly entered into the Content ID system.

3.1.What is Creative Commons

Some musicians are now releasing work under Creative Commons (CC) Licenses (creativecommons.org). This is a new scheme meant to allow artists to share their work more freely, while not giving up complete control. There is no formal registration process, so musicians and composers can just write in a video description that they are using a Creative Commons licence. There are six main kinds of licences:

  • Attribution (CC BY) (The user needs to credit the creator)
  • Attribution Share Alike (CC BY-SA) (The user needs to credit the creator and the the new work, whatever it is, should have the same Creative Commons license.
  • Attribution No Derivatives (CC BY-ND) (The user needs to credit the creator; the user may use, but may not adapt or remix the original work).
  • Attribution Non-Commercial (CC BY-NC)(The user needs to credit the creator; the work may only be used for free for non-commercial purposes; however, the creator, is free to make other arrangements for people who want to use the work commercially)
  • Attribution Non-Commercial Share Alike (CC BY-NC-SA)
  • Attribution Non-Commercial No Derivatives (CC BY-NC-ND)

There are some things you need to watch out for. If the license includes a non-commercial (NC) restriction, you would not be able to monetize your video unless the copyright owner gives you permission. Once you start monetizing videos, you can no longer claim that they are non-commercial.

If the license includes a no-derivatives (ND) restriction, then you do NOT have the right to use the music in a video as you are creating a new work—’an adaptation’ according to the wording of the CC license (mollykleinman.com/2008/10/20/cc-howto-no-derivatives). If you want to use a piece of music that is licensed with the ND attribute, simply ask for permission and you will likely get a favorable reply (I don’t think many people know about how the ND restriction works and probably never intended to prevent you from using their music in a video).

3.2 So I am safe if I use music published under a Creative Commons license, right?

Um…no.

What if a musician with poor knowledge of copyright does something like upload an instrumental version of a copyrighted song and then upload this recorded version under a Creative Commons license. The music composition is copyrighted, so you could still find yourself in trouble with the music publisher if you use the recording.

Creative Commons licenses are irrevocable, but people often remove them anyways. Media companies like YouTube, Flickr, Vimeo and Soundcloud all allow uploaders to ‘cancel’ their Creative Commons licenses. What happens if the composer of the Creative Commons licensed song you are using in your video suddenly removes the license information and asks you to pay for its use? You would legally be in the right to refuse (Hey, the licence is irrevocable!), but do you have proof the song was published under a CC license? If you ever use CC licensed work, I would recommend that you record the download date and the URL and get a screen capture of the licence information.

Here is a tough luck case in which a YouTuber used YouTube’s own video editor, which allows you to mix videos that have been published with a CC license to create new videos. Two of his videos were later deleted and he received two copyright strikes because someone else published something under a CC licence and either didn’t have the necessary rights to do that and/or ‘cancelled’ the licence: productforums.google.com/forum/#!msg/youtube/HEMd4WQcTlk/Z4xEqVXDHvgJ

4.1 What is fair use?

To allow copyrighted works to be used for educational purposes or to be parodied, commented upon or criticized, copyright laws usually include a fair use provision—the right to use a portion of a copyrighted work without requiring permission or having to pay licensing fees. Again, the details differ from country to country (for example, in many countries, parody does not fall within fair use provisions). Fair use is known as fair dealing in some jurisdictions.

Before going through the criteria that are used to determine what is considered fair use, it is important to note four things:

First, exactly what constitutes fair use is subjective and depends on four criteria (these are described below). You can say your use of copyrighted work constitutes fair use; however, the copyright owner might disagree. In such a case, who would decide? It would basically require a court case. The courts would decide whether your use falls under fair use provisions. Thus, fair use can be considered as a legal defense against claims of copyright infringement. YouTube, of course, is not a court. Therefore, it has no right to determine whether something constitutes fair use.

Second, YouTube gives copyright owners the benefit of the doubt in almost all cases. In an article entitled Content ID and and Fair Use in the Google Public Policy Blog, Shenaz Zack (Product Manager) states that “rights holders are the only ones in a position to know what is and is not an authorized use of their content, and we require them to enforce their policies in a manner that complies with the law” (googlepublicpolicy.blogspot.hk/2010/04/content-id-and-fair-use.html). I would argue that YouTube’s interpretation is wrong here; not all copyright owners are infallible and impartial arbiters when it comes to something like fair use. Many copyright owners routinely reject fair use claims (perhaps because so many people make bogus claims). If you are looking for information about what to do if your claim is rejected, you can go to Section 5.3 to find out about submitting appeals and counter-notifications.

Third, the criteria that are used to determine fair use are purposefully left ambiguous. For example, if you are doing a commentary of a famous rock album. How much of any one song can you use before you are using too-much-to-be-fair-use? Is 10% OK? What about 25%? There are no exact guidelines because copyright laws are left ambiguous to allow decisions to be adapted to a wide variety of circumstances and to new forms of media and technology.

Fourth, there is no way to apply for anything like a ‘fair use license’ before using a copyrighted work. Such a thing does not exist. Of course, you can still ask for permission to use a work, but there is no formal mechanism for applying for fair use exemptions or permissions.

These four points mean that fair use is something of a gamble; you can really only prove it in court.

4.2 What are the criteria for determining fair use?

There is no exact formula for determining fair use, but in a court case, four aspects would be considered:

4.2.1 The nature of the original work
If the original work is factual in nature (rather than a creative work), then using it would more likely fall under the category of fair use. Unfortunately, music is basically creative in nature (an exception might be a performance by a musician demonstrating various music styles).

4.2.2 The amount of the original work used
There is no exact figure, but in the education field, using 10% of an original work would probably be considered the limit. However, if you re-publish something that is considered a very crucial element to the work, such as a YouTube video clip showing the entire incinerator scene in Toy Story 3, that might be considered too much. One exception where using a longer excerpt might be considered fair use would be in a music tutorial video—you can argue that it is necessary to play the whole song, or at least most of the song, in order to teach people how to play it.

4.2.3 The size of the potential audience and the ability of the new work to affect the potential market value of an existing work
Showing something in class to 30 people is not the same as posting it on YouTube, with a potential audience of millions. This criterion is related to the potential of your use of the work to affect the market value, and potential future market value, for the work. Of course, the smaller the actual and potential audience, the better your chance of your use of the work being considered fair use. Putting something on YouTube, however, makes it very difficult to meet this criteria unless you have really transformed the nature of the music (see the next point) or have used a very small proportion of the music (see the previous point). You need to be aware that anything you can upload can be downloaded using online video-downloading sites, so if you put a whole song online, you are basically offering it free for the entire world. And yes, there are people who build up their mp3 collections by downloading the soundtracks of YouTube videos.

4.2.4. The purpose of the use and the extent to which you have transformed the purpose of the original work
If the purpose is for non-commercial use, especially for education, criticism and commentary, or for strictly personal use, this would increase the chances of the use of the work being considered fair use. Also important, however, is the extent to which your new work transforms the purpose of the original work. One example of a commercial use that could be considered fair use would be a commercial movie review webcast using short clips of movies to demonstrate the points made by the film reviewers. The purpose of the original movie may be entertainment, but your use of the clips can be considered as a form of criticism or commentary.

With regard to music, if you just do a cover of a song, there is no transformation of the melody, harmony and lyrics, and there is no transformation of the purpose, so a straightforward cover version would not be considered fair use. However, if you do song tutorials in which you teach people how to play the song on the guitar, you have transformed the purpose of the song (it is now serving an educational purpose), so you would be in a much stronger position to claim fair use.

Even if the purpose of your new work is educational, however, you would also need to look at if your use of the original work is necessary for that purpose. If you are teaching people how to play a song, obviously the use of that song is necessary. In contrast, if you are creating an educational video about physics and want to liven it up with a pop song in the background, the use of music would not be considered relevant to the educational purpose of the video and its use would not be considered fair use.

To sum up, almost all uses of copyrighted music that you normally see in YouTube videos uploaded by non-copyright holders would not meet most of the four criteria and would not fall under the category of fair use.

Here is a video with legal experts discussing the possibility of applying fair use arguments to a number of different situations involving YouTube videos. Their favorite words seem to be: “that depends”, “that’s tricky”, “that’s hard to say” and, of course, “that’s ambiguous”. In reality, the answer for a lot of questions concerning ‘Can I use legally use music in this way?’, is simply ‘No’, but I got impression the experts were trying to be as open-minded (and non-discouraging) as possible. It’s a long video, but worth watching if you are interested in things like cover versions, video-game commentaries and parody as the speakers discuss the legal issues surrounding these cases.

4.3 What about parody?

This is a controversial topic. Parody involves the deliberate imitation of a work, usually in order to make fun of it or comment on it in some way. It is considered a form of derivative work—meaning something based on an existing work. In some jurisdictions, parody can be considered a form of fair use if certain conditions are met and is thus protected from copyright claims from the owner of the original work. In the United States and Britain, for example, a parody can be considered to be fall under fair use if the new work can be interpreted as a comment or criticism of the existing work. In Canada, however, there is no such protection.

Parody becomes an even more troublesome concept when music is concerned. Most music parodies make fun of the performance style of the performer and the lyrics of the song; however, the actual music (the melody and harmony) remains unchanged. Thus, although the performance and lyrics are imitations, the music—which is also protected by copyright—is not. One key factor would be the extent to which the purpose of the original performance has been changed (e.g., from Lady Gaga entertaining you with her music to you criticizing Lady Gaga’s music, lyrics and performance style through your parody of her song).

The most famous music parodist, Weird Al Yankovic, does get permission from the performers and copyright holders before recording his parodies of their songs.

4.4 What about mashups and Anime Music Videos (AMVs)?

Regarding AMVs, no, sorry, these are not protected from copyright claims (though you may find opinions to the contrary). In an interesting article on copyright law, AMVs and the new culture of re-mix creation, Stanford Law professor Lawrence Lessig calls for a new way of considering intellectual property, but admits that the existing laws do not really allow for uses such as AMVs:

“Yet the law of intellectual property will not easily accommodate this remix creativity. As the rules are written today, even for purely noncommercial purposes, there is no clear right on the side of the remixers….the law today speaks firmly: there is no freedom for this sort of creativity. There is no way to even license the right.” www.ft.com/intl/cms/s/2/d55dfe52-77d2-11da-9670-0000779e2340.html)

The main problems are that:

  • The original work is creative in nature (failing to meet the first criteria).
  • Large amounts if not all of the original song is used (failing to meet the second criteria).
  • People can now download the song using YouTube downloading software instead of buying the music. Because people do download mp3 audio-only files from videos posted on YouTube, you are making the music available to a huge potential market (failing to meet the third criteria).
  • And finally, while possibly adding a layer of meaning to the song through visual imagery and probably using the music on a non-commercial basis, you are not transforming the purpose. It is still mainly entertainment (thus, only partially meeting the fourth criteria).

As anime music videos really do not meet any of the four criteria, it would be wishful thinking to claim fair use when uploading them.

For mashups, there is some legal ambiguity. Depending on how much of an original work is used and how much a piece is transformed, one could argue that a mash-up might be protected under the fair-use doctrine. Could DJ Earworm’s annual mashups, which definitely transform the original music to a large extent, also be considered as a form of commentary on or criticism of the year in American music?

Maybe.

4.5 What about cover versions?

As mentioned before, the music (combination of melody and harmony) and lyrics are protected by copyright, so even if you are changing the arrangement, the song is basically still the same. If you upload cover versions, you are technically breaking copyright law. However, even if your cover version is detected via YouTube’s Content-ID match system, in almost all cases, music publishers, composer collection agencies and artists are content with earning money through advertising and will not pull things like cover versions of songs (Update: There is now a new feature in which copyright owners can elect to share advertising revenue with cover artists who are YouTube partners).

The key word in the above paragraph is ‘almost’. If that is your thing—doing cover versions—and you are posting a few hundred of them, there is a good chance you will come across an ornery individual or company. Here is David Choi’s experience:

Here is a musician, Ely Jaffe, with a lot of common sense advice about doing cover versions for uploading to YouTube. he rightly recommends using your own performance for the background music rather than relying on things like karaoke tracks.

One interesting thing mentioned in the video is that although there are copyright issues with uploading cover versions to YouTube, you are able to sell cover versions on iTunes legally and quite easily. This is because to make and sell audio recordings of cover songs, you only need to get a mechanical licence, which is quite easy. Though you would need to pay royalties to the songwriters, this is handled by a performance rights organisation.

If you want upload a video completely legally, however, you also need to get permission from the copyright holders and negotiate a synchronization license (if you also wanted to sell MP3s of your version, you would need a mechanical licence as well), which can cost a lot of money and is not always easy to obtain. Have you ever wondered why you rarely hear the song Happy Birthday in a movie? Mainly, it’s because it’s expensive to obtain the rights to use it. For lesser known songs, however, it might even be possible to get such a license for free, as shown in this video:

4.6 If I use a karaoke track of a cover song, add my own words and upload to YouTube, is that allowed?

You would be infringing copyright in two areas: (1) the actual recording of the karaoke track would almost certainly be protected by copyright and (2) the music part of the composition is still protected by copyright.

5.1 What is YouTube’s policy concerning copyrighted music?

YouTube is caught in a difficult situation. Much of the content and traffic on the website (and therefore much of the revenue) comes from the illegal use of copyrighted music and visual elements. To solve this problem, YouTube gives copyright holders the power to take down videos containing their work, monetize them or simply do nothing. To do this, YouTube makes use of an amazingly powerful music content matching system that can identify copyrighted music within seconds.

One problem with YouTube’s approach is that it creates a lot of misunderstandings. Some users are punished by having their accounts terminated (becoming something like sacrificial lambs slaughtered to appease powerful media companies), while other users with exactly the same copyright issues have their videos promoted as suggested videos. The following video, featuring a representative of the company, does a great job of explaining  how their copyright policy works, though you might not like to hear what she says.

Another criticism is that YouTube doesn’t seem to be checking very carefully to see if the people and organisations claiming copyright under the content ID match system actually own the copyright to the content they are claiming (leading to the copyfraud problem).

Apparently, YouTube has privately reached an agreement with some media companies. Basically, the media companies allow their copyrighted work to be uploaded and then they monetize the videos; however, it has never been made public exactly which companies are involved. If you are using copyrighted music in your work, the least you can do is talk to people doing similar things (e.g., making AMVs) and find out which companies are aggressive in protecting their work and avoid using anything from these companies.

5.2. What can you do if you receive a copyright claim against your video?

There are two kinds of procedures. One is for disputing challenging ID matches while the other is for challenging the decision to take down videos. This second type—a DMCA counter-notification is covered in the next section.

When you receive a content ID match or copyright infringement notice, you will also be asked if you want to appeal the claim. If you are confident that the work is in the public domain worldwide or that your work is really fair use, you can take this option. The challenge would be passed on to the person or entity claiming copyright, who would then have 30 days to review your case and decide whether to uphold their claim or release it (or take a third option, which is to order your video to be taken down). If they uphold their claim, you can continue the process by disputing the appeal. The company then has 30 days to respond, either by dropping the claim or by taking legal action in the form of a takedown notice. In the latter case, your video is deleted and a copyright strike is issued to your account (support.google.com/youtube/answer/2770411?p=dispute_appeal&rd=1).

Quite often, however, publishing rights collection agencies will only want to earn money from your videos (by putting ads next to them) or block them in certain countries. In such cases, you may not feel that it is worth the trouble to contest the claim, though you should be aware that the copyright holders can change their policy—block, take down or monetize—at any time.

DMCA takedown notices are more troublesome, and if you get three of these, your YouTube account is terminated. If you want to challenge a takedown notice, you have to file a counter-DMCA notification (www.youtube.com/t/copyright_counter). You can view this video showing the counter-notification process in detail:’

5.3 My video’has been deleted: DMCA and the counter-notification process

OK, so your video had been deleted for copyright infringement. What do you do? You need to issue a DMCA counter-notification (www.youtube.com/yt/copyright/counter-notification.html). If you have had repeated copyright infringements, however, you may not be allowed to issue a counter-notification.

Under the terms of the Digital Millenium Copyright Act (DMCA), content hosting sites like YouTube are protected from liability against copyright claims as long as they abide by certain guidelines. Thus, the DMCA serves as a kind of Safe Harbor (www.chillingeffects.org/dmca512/). One thing YouTube must do to protect itself form liability is to remove content upon the request of a copyright holder (thus, the dreaded DMCA takedown notice). However, YouTube is also required to give content creators the opportunity to challenge such removals.

To have your video reinstated, you would need to complete the online counter-notification form (if your account has been deleted, you might need to send in a hard copy). Your personal details and contact information (including your address as well as other personal information) as well as your explanation as to why you you believe there is no copyright infringement would then be forwarded to the party claiming ownership of the content you have alledgely used inappropriately. That party would then have ten business days in which to notify YouTube that it is taking legal action against you. You therefore need to take the counter-notification process seriously. You are basically saying, “Oh yeah, so sue me then.” Ideally, you should get proper legal advice before submitting a counter-notification. Also, do be on the lookout for fraudsters. Because your personal information is forwarded to the supposed copyright holder, a new kind of fraud has come to light. Apparently, false copyright claims are being made for the sole purpose of harvesting the personal information, which can then be sold on.

What should happen after submitting the counter-notification is that either a) you get sued (congratulations!) or b) the copyright claim is dropped and your video goes back online (congratulations!). This is how the process is supposed to work.

However, sometimes, something strange happens. Instead, you can get c) you don’t get sued, but the claim against your video is upheld by YouTube and your video remains deleted. What? Can YouTube legally do this? It seems they can. In a comment on his own blog post YouTube Refuses to Honor DMCA Counter-Notices, Patrick McKay explains:

Sadly there is no actual affirmative requirement in the DMCA to follow either the takedown procedure or the counter-notice procedure. The DMCA is a safe harbor, which means if you follow it you are safe from civil liability on other grounds. If you take down a video, you are safe from liability for copyright infringement, which entails statutory damages of up to $150,000. If you follow the counter-notice procedure, the only liability you are safe from is breach of contract, since baring some contractual relationship, a private website like YouTube has no legal obligation to host your content. YouTube’s terms of service, which are the only government contract here, expressly insulate them from an liability for refusing to host a video, even if it is not infringing. They only say they “may” restore the video, not that they will.

YouTube could be doing a lot more to shut down false copyright claims, preserve the privacy of its users and protect the concept of fair use. If YouTube uploaders get three copyright strikes, their accounts are terminated, why can’t a similar principle being applied to people making spurious claims?

5.4 So, if I post something and don’t get a notice then I am safe, right?

Um…no. As YouTube refines its content matching system to make it even more powerful, your video might get taken down later. It is a common experience.

5.5 I got a notice about my video saying that someone is claiming copyright, but that I don’t have to do anything. I’m safe, right?

Sorry, that’s another no. The copyright holders can change their minds at any time and issue a DMCA takedown notice on a video they had previously approved for monetization. Personally, I prefer not having any of my videos having copyright claims on them because it means someone a third party has power over whether my videos will continue to be seen or be deleted.

5.6 I got a YouTube copyright strike! Will it ever go away?

These used to be permanent. Now, after six months have passed without any copyright issues popping up on your channel, you may find that the strike has disappeared. No notification will be given.

5.7 Can I cheat YouTube’s content match system?

It is definitely possible, but this usually involves changing the speed and/or pitch of the song and generally messing up the song in the process.

5.8 Is it OK if I use copyright-protected music without permission as long as I post a statement saying I do not own the music and I properly credit the artist?

No. You can do this as a form of courtesy to the original artist, but unless you are using public domain music or your use is really consistent with fair use, your use of music would still be in breach of copyright law. On the one hand, at least you are giving credit. On the other hand, with such a statement, you are openly admitting to breaking copyright law as well as YouTube’s own terms of service. In any case, using will not be useful in persuading a copyright holder not to have your video removed.

6. Can I license music from a pop star?

It is extremely difficult unless you are dealing with an unsigned (i.e., they don’t have a contract with a record company) songwriter/musician. In this case, you can send an e-mail requesting use of the song. Maybe they would appreciate some exposure.

If it is a song by a well known performer, however, things become incredibly difficult. You would need to get permission from the music composer(s,) the lyricist(s), the publisher, the performer(s) and/or the record company (whoever owns the copyright for the music, lyrics and performance). If any of the people are dead, you would need to seek out their family members. You would need to get a Synchronization License (giving you the right to include the song in a video) from the owners of the musical composition (music and lyrics) and a Master Use license (giving you the right to use a specific artist’s version of the song in the video) from the owner of the copyrighted recording of the song. These licenses are typically very expensive. Small indie filmmakers can expect to spend several thousand dollars (US) to get the licenses for a single song for a limited release. For studio produced movies, the fees are often in the hundreds of thousands of dollars. The whole process take a long time and there is little chance of getting a positive response from everyone involved (the whole process is outlined here: http://www.clearance.com/get_yourself.htm).

There are copyright clearance agencies that can be hired to perform this task (for a fee).

7. Where can I get music to use as background music?

Luckily there are composers and musicians who are willing to give you free songs to play with. These are issued under Creative Commons licenses (http://creativecommons.org/) or under the musician’s own terms (e.g., ‘not for commercial use’).

Archive Org: http://archive.org/index.php
Video, music and text in the public domain or issued under Creative Commons Licences.

Freesound: http://www.freesound.org/
Music recordings issued with Creative Commons Licences

Soundcloud: http://soundcloud.com/
An audio uploader that features many Creative Commons licensed music tracks. Try searching for a style of music (e.g. dub step) and then select one of the Creative Commons attribution qualities on the right. Not all music uploaded here is under Creative Commons.

Longzijun: https://longzijun.wordpress.com/2011/04/13/free-background-music-and-scores-from-a-variety-of-composers-in-a-variety-of-styles/
This is my page of links to composers and musicians who provide free music. You can also simply click the ‘music’ tab this website to see my own work

CMixter: http://ccmixter.org/
A site of Creative Commons licensed music tracks

Related Articles

The Illegal Downloading Debate: Is it OK to Download Songs without Paying?
Creative Commons Licenses: Advantages and Drawbacks

 


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127 thoughts on “Music, Copyright & Youtube: Fair Use, Public Domain & DMCA

  1. I want to make a video for youtube and use audio from Tupac in the 1980’s, its not music just audio of him talking. Where do I stand on copyright ? can I claim the copyright when the video is finished and monetise the video ?

  2. Hi Lee,

    The issue isn’t very clear.

    The original audio recording would be protected by copyright. You could make an argument that your use constitutes fair use (e.g., maybe you are making a video that educates people on the history of rap and the Tupac clip is just one example), but publishing it on YouTube and monetizing it would weaken those claims. Strictly speaking, you would be breaking copyright.

    Of course, what about all those songs that use sampled vocals from movies, new broadcasts, ethnic music recordings or old documentaries? A common practice seems to be sample it, release it and then worry about copyright later (and only if challenged).

    Almost all of rap music is based on this approach. The justification used is that the artist is creating something entirely new.

    To sum up, you can ‘claim’ copyright, but the person who recorded the original recording could challenge that claim and sue.

  3. Pingback: Creative Commons Licenses: Advantages and Drawbacks | Longzijun

  4. An outstanding share! I have just forwarded this onto a coworker who has been doing a little homework on
    this. And he actually ordered me lunch due to the fact that I found it for him…

    lol. So let me reword this…. Thank YOU for the meal!!
    But yeah, thanks for spending the time to discuss this issue here on your site.

  5. Please pardon this potentially dumb question: say I purchased music that is copyright-free everywhere but the EU. Does that mean YouTube won’t allow a video using that music to play on domains from the EU, or does it mean that YouTube will take down the video entirely? Thanks!

  6. Hi, what a strange restriction (what do the terms of use say exactly?).

    In copyright cases, YouTube doesn’t decide anything. If there is a Content ID match, they either pass the information onto the copyright owners for them to decide or (more commonly) just follow the instructions already given to them by the copyright owners.

    Therefore, one can never predict what will happen. It’s unlikely that your video would be taken down. And if it is, you should be able to successfully appeal it (so hang on to any evidence like the receipt and the terms of use). I don’t think the video would get taken down, but if you’ve been with YouTube for a while, you should know that there are no guarantees.

    There is a chance that the video will be blocked in certain countries, especially if the music is in YouTube’s Content ID match system.

    There is a good chance that nothing at all will happen.

    I don’t know if the copyright holder would be able to monetize your video (they would have the right to do this for views coming from EU, but I doubt YouTube gives copyright owners this option), and I don’t know if having content that is ‘mostly’ copyright-free would affect your own monetization abilities.
    .

  7. Hi, I am an online music teacher who would like to post on YouTube music tutorials demonstrating how to play pop songs. Is this considered fair use? Thanks for your great article!

  8. Hi Justin, That is a grey area. And there are different shades of grey.

    Light grey (stronger claim to fair use)
    The videos are not monetized, you don’t play the song all the way through and you give lots of explanations regarding things like fingering, phrasing and strumming techniques. The argument against fair use here would be that by teaching the song like this to a worldwide audience, you are depriving the composer of earnings from sheet music sales. However, I don’t think this is a strong counter-argument.

    Dark grey (weaker claim to fair use)
    The videos are monetized and you mainly just play the song all the way through while the camera focuses on the fingers on the keyboard. This would be more like a cover version (and cover versions do not not fall under fair use).
    ————————
    It’s a good idea for a channel, but you will get Content ID matches and you will have to choose whether or not to dispute them. Your case for fair use will not be ironclad, and even if you are in the light grey area, many copyright owners will automatically reject your initial appeal.

    To conclude, I think it’s worth starting such a channel, but you will have to be prepared for some frustrations and annoyances.

  9. That would be a nice courtesy to the composer, but does not really do a lot to strengthen fair use claims (there’s no criteria related to promotion). The best thing would be to beef up the teaching aspect.

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  11. What’s the rule on posting existing YouTube videos on a blog, if the purpose is solely to demo the artist’s work and each posting prominently features an Amazon affiliate Buy link, please? I’d love to do each posting like a music show, with an hour’s worth of tracks per week and each track accompanied by strong encouragement to buy the song or album. I won’t be uploading any videos myself, and I don’t mind at all if they’re monetized by the company. Does this sound as if it would be legal and acceptable? Thank you :-)

  12. It seems to be ‘unacceptable,’
    The problem is with the use of affiliate links on the website, which would go against YouTube’s Terms of Service section 4D:

    “You agree not to use the Service for any of the following commercial uses unless you obtain YouTube’s prior written approval:..the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from YouTube appears on the same page and is of sufficient value to be the basis for such sales.” (https://www.youtube.com/static?template=terms)

    If you are looking for a way around this restriction, one idea would be to focus on that last part. If you did a review of each song or album, that might be enough to meet the condition of ‘other material of sufficient value’.

    Or you can just drop the ‘affiliate’ part. Of course, that means you won’t make money, but you didn’t say that making money was one of your purposes. If you just want to promote the artist, you can.just use a normal link.

  13. Hi … I got a YouTube Copyright Claim On My YouTube Video ? What Dows This Mean ? Is There Any Problem With That ?

  14. It means Sony is saying you used some of their material in your video. Did you create all the material in that video yourself, or did you use footage from a TV show, movie or game?

  15. Hello and Thank you putting this well-written, very informative piece out here.
    We recently posted a video to YouTube and it has, unexpectedly, drawn a lot of attention. It was recorded as part of a Charity/Respecting Giving Act, as one of the steps involved in participating. Music was added to the video after it was recorded and prior to sharing via YouTube. We are Very new to using YouTube.
    Initially, the blanket “Fair Use” argument was used, as suggested to us by others, to allow for the Video to be viewable on Mobile Devices. After that, the video was viewable for approx 3 weeks on all Devices. Then, it stopped being viewable on Mobile again. And, the wording next to the video in “Video Manager” changed from “Disputed Third Party Matched Content” to “Acknowledged Third Party Content.” We have since read that it is the use of the music that is the problem.
    Although the music is a nice feature. It is not a necessary element of the video. Also, we are not in this for money making. We simply would like for the video to be viewable to as many people that would wish to watch it as possible. Primarily because it honors others that have sacrificed much.
    Do you know if utilizing the, “remove this song” option on YouTube will allow for the original audio of the recording to remain and be heard? And, if there is a sure way to “Un-do” the removal if it is not satisfactory in that regard?
    We have not received any emails/warnings on the matter from YouTube.

    Thank you in advance for any information/reply.

  16. As far as I know the ‘remove-this-song’ function is still in the experimental stage. Sometimes it works in that way (keeping the non-song-audio) and sometimes it doesn’t (it might just completely mute that section of audio). There is an undo function, but there is a small chance that this may not work smoothly (e.g., long processing delays). (https://support.google.com/youtube/answer/2902117?hl=en)

    (BTW, that use of music wouldn’t fall under fair use. There is a lot of bad advice online–which is the reason I wrote this article)
    .

  17. The music in your video is The March by Ky-Mani Marley. This was used in the soundtrack of Shottas which was a film produced in 2002 by Destination Films, which is a division of Sony Pictures. The songs was later released in an album by the artist, but it was first released via Sony, so there is a good chance they own the rights to the music.

    (BTW, any time you use a recording of a pop or rap song in a video without a licence or permission, you are infringing copyright)

  18. Hi!

    I have a question and I haven’t found the specific place to get an answer. I have a band and our albums are in a label which owns reproduction rights. I want to monetize my videos on Youtube but every song I upload from any album in that label appears to be copyrighted and I need to Recognize third party content to avoid the video being blocked. Do you know if there is anyway to inform Youtube that I’m the actual owner of the songs but that I allow a label to collect royalties for me?

    Thanks!

  19. In such cases, you should contact your label and ask them to ‘whitelist’ your channel. That means that any Content ID matches from videos on your channel are immediately cancelled by the label (or whoever is administering the rights on behalf of your label).

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  21. I would like to make a YouTube slide show video for my non-profit classical music choir’s upcoming concert. We do not have a recording of our group singing it so I would like to use another group — for example, the Mormon Tabernacle Choir. I have purchased the music in my own iTunes account. We are not selling the video or CD’s, but we would like to inspire people to buy tickets to our concert. Please advise if this is permissible. If not, how do I go about obtaining permission??

  22. That is not permissible. You would need to find the copyright owner of the recording and seek permission. Even if you did this, they would almost certainly not give permission as your video would seem to imply that it was your choir performing the song.Why not just record your group singing (but you would have to make sure the song and arrangement are in the public domain)?

    It doesn’t matter if you have purchased the CD. Also it doesn’t matter if you are not selling the music. It would still be copyright infringement.

  23. Are famous speeches uploaded on YouTube copyrighted? For example, King’s or Mandela’s speech. Can I use an excerpt from a famous speech and put it in an article/chapter of a book I intend to publish?

  24. Most of those speeches are still copyrighted.
    http://en.wikipedia.org/wiki/I_Have_a_Dream#Copyright_dispute

    By putting only an excerpt in a book, you would be arguing that you are meeting the criteria for fair use, and you would have a strong case (but as mentioned in this article, if the copyright owner disagrees with you, fair use can only determined by a court of law). I would try asking for permission/licensing fees first.

    If you put the whole speech in a book, you would find it difficult to argue fair use.

    I would guess a lot of American presidential speeches would be in the public domain as they are official government documents. Here is a famous one for example: http://commons.wikimedia.org/wiki/File:Reagan_Space_Shuttle_Challenger_Speech.ogv

  25. Hi I want to make a gameplay video, if I get music from a public domain website that allows me to use it as long as I mention the artist name or website, is it safe to use? Also the game maker is sledgehammer, are they LetsPlay friendly?

  26. Hello. I appreciate the thorough article you’ve written. I just created a piece which I guess is a derivative work: I combined a classical piano work (by Debussy but in the public domain) with my own cover/arrangement of John Legend’s “All of Me” (not the entire song, but about two verses are in melodic form as well as the chorus but all are in a different transposed key than the original). So I made a mashup piano solo (but could also be a cover and arrangement). I just want to post it on Soundcloud, yet am unsure which type of license(s) to get or what proper permissions. I also plan to make more of these mashups, which I guess, the classical works would be in the public domain but it’s being cleared for my arrangements/covers of the recent songs I’m not sure how to get the right liscenses/ok to not infringe on copyright. I really hope you can answer my question as I read I’m probably sampling, (even if it’s not from the orig. Recording) which makes things complicated. Having said all that, would my chances of getting the go ahead good? I really want to go with this idea but want to know how to do it (legally) correctly. Thanks.

  27. You would just need a ‘mechanical licence’ from whoever administers the copyright to the music compositions (on behalf of the songwriters). The only difficult part is tracking down who administers the copyright. You can visit the websites of ascap, bmi and sesac and see if they are administering the copyright. Mechanical licenses are relatively easy to get. The more difficult thing would come if you start creating videos–then, you would also need a sychronization license.

  28. Great article. Thank you very much for the information. I had a question off topic but dealing with copyright law: is it legal for me to create a ringtone using my voice of a famous movie line (i.e. I’ll be back!! By Arnold Schwarzenegger in the movie Terminator. Or “Say hello to my little friend!!! By Al Pacino in Scarface.) Thanks in advance.

  29. Probably not legal. Here is a detailed article. The main point is that movie quotes have been given trademark/copyright protection in court. (The scripts are copyrighted and some quotes may already be trademarked). However, the writer suggests courts need to be more careful not to give too much protection. If you were thinking about selling your ringtones, you would definitely want to consult an attorney first.

    A lot would depend on (1) the quote (it would be easier to protect a quote specific to that movie–like the Scarface quote–than something like ‘I’ll be back”), (2) what you are doing with the quote, (3) whether or not is has been trademarked and (4) how active the copyright/trademark owner is in protecting their intellectual property: http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1086&context=ipbrief

  30. Regarding 5.5, “The copyright holders can change their minds at any time and issue a DMCA takedown notice on a video they had previously approved for monetization…” Does this hold true when a copyright claim is disputed for any reason, or only when the dispute is filed under “fair use” and accepted as such by the copyright holder?

    I have had multiple copyright claims against videos that use songs that I had specifically chosen because they are part of the public domain (both the original creations and the specific recordings), and have filed a dispute in each case citing the “public domain” option. I had assumed that once the copyright claim falls off, the video was in the clear. Is this not the case, and I should be prepared to repeat this scenario in the future?

  31. There is a flaw in YouTube’s system. A company can falsely/wrongly claim copyright on a song, release the claim after a dispute is filed (usually just by letting the 30 day period for reinstating the claim expire). Then, the SAME company CAN simply claim the SAME song again, forcing the video maker to repeat the dispute process. So, yeah, you will need to be prepared for that.

  32. Hi, I’m a music online teacher. In my videos would like to show some music giants, personalities just to complement some of my sessions, for example, if I’m telling my students to listen to some musician, (an old one for example), I would like to put a nice photo of him, even an excerpt of a video of him playing live, just for teaching purposes. Would it be illegal? Thank’s in advance

  33. It is infringing copyright, so it is a matter of whether it is fair use or not.

    One factor would be how many people could access it: If it was a closed system like an intranet or if access was password-protected so that only students in the course could view it , you would have a lot better claim.

    Another (more important) factor would be how the clips are integrated into the teaching. if you have a twenty minute lecture and in the middle there are a few short clips and you are sometimes talking over the music, that would be much more likely to be considered fair use. If it is just “hey, check this out”, that would not be very likely to be considered fair use.

    YouTube would likely pick on the songs with the Content ID system, though, so you would need to prepared to regularly file appeals. I had thought about doing a film techniques analysis channel, but ran into copyright problems with all the clips. I am confident the videos would fall under fair use, but I didn’t feel like going through the appeals process with every video, so I stopped after two videos. https://longzijun.wordpress.com/2014/04/03/film-scene-analysis-cinematography-and-mise-en-scene-in-american-beauty/

  34. Longzijun, Thank’s for your response, you have clarified my how it works. I saw your videos, they are amazing!!!!!, it’s a pitty that somebody doesn’t allow to make that kind of work, you are so didactical and clear. However, what I have in mind is to do all the material by my own and then demonstrate it with a 5 second clip (aprox) of a Master…just like a complement of all what I said. I don’t think that it becomes a problem but I will see what happens…

    Thank’s a lot!

  35. This is brilliant work. Thank you Longzijun :)..

    I’m about to release a House track, where i use some very old movie clips ( talk )
    But I want to do this right – and i’m happy to pay for royalties to owner. But it’s seem’s very difficult
    to found the owner.. This is the track ( Working Copy ) https://soundcloud.com/flagmo-t/what-truth-working-title

    I like to add some depth into my creations, such as in this track . We the Humans are often being spin and manipulated or even worse – and all we really want is the truth.. so yes Honesty is a part of me hehe. That’s why it’s important for me to of course Clear my work and appreciate the creators work by following the rules and laws and just showing normal respect and appreciation ..

    But I need help hehe.. How can i solve this ?

    Thank you in advance..

  36. You have probably answered this already somewhere, but I cannot find it.
    Am I in trouble if I upload a video to Youtube of me driving around while music is being played over the car radio?
    I’ve uploaded couple of videos of exactly that, and now I got a message saying that video has been blocked in some countries because…
    “…Your video might contain copyrighted content.
    Copyright owners can choose to block YouTube videos that contain their content…”.

    Thanks in advance for your answer

  37. Yeah, that would be infringing copyright (even though the music may have unintentionally recorded). You can think of it like those scenes in the movies where the car radio is playing. The producers would certainly have had to secure the necessary licenses.

  38. Movie dialogue is protected by copyright, so you would be mainly be seeking permission from film studios (each film studio has someone in charge of clearances like that). I did a quick search online before replying and the consensus is that if you use vocal samples in your work without clearance, not much happens unless your song becomes a hit. Then you may find the copyright holder comes for a piece of your pie.

    If you have a lot of clearance-less samples, that might also discourage record labels from taking you on,

    If you want to be really safe, you can use public domain recordings: http://www.publicdomainsherpa.com/public-domain-recordings.html

    I went to check out your tunes, but Soundcloud isn’t working for me at the moment.

  39. Hi @Longzijun. If we make an original animated product video to promote a software product and the protagonist character in the video sings parts of copyrighted songs to himself (two songs, probably one line/chorus from each for a few seconds) is that a breach of copyright? Closest things I can see above are cover versions. Thanks for the advice.

  40. Yeah, It would, which is probably why that concept is not commonly used. If you weren’t making a commercial, you could argue fair use as you are using such small parts of the original songs. As it would be a commercial, the songwriters may not be too thrilled to be cut out of the action.

  41. Hi! Sorry if the question is already answered in the long post!
    I decided to start a youtube channel with anime music violin covers. From this post I understood that it’s illegal, right? But there are many anime music cover channels on youtube. Do they all have license or are they illegal? I would like to know, if I can start it without getting in trouble.

  42. Almost all would not have licences, Almost all will have their videos identified by YouTube’s Content ID match system. In most cases, the music is monetized by the copyright holders. A small percentage would run into more serious problems from time to time (like getting their videos taken down. If you are doing a cover channel, I would recommend reading the whole article carefully so that you know what to expect. I am not against cover channels. I help my students run a channel for their original songs and covers. All the covers have been identified and are being monetized by the copyright holders.

  43. Hi, thanks for all the info. I’m producing a web-series, and in one episode, we want to have the characters perform a song at karaoke. Since this is a very specific situation, I’m not sure what type of license we need. Would it be helpful if we recorded at a live karaoke bar (with permission from the musicians of course) as opposed to using a prerecorded backing track? Thanks!

  44. Assuming you are doing a video, if you use an existing recording, you would need a Master Use license for the recording and a Synchronization license for the composition. If you do the live band (with permission), you would only need the Synchronization license. It’s important to remember that the composition itself is copyrighted.

  45. So the worst, that can happen is, that my videos can be taken down? If most of them don’t have license and they are still not taken down, then I can just try. Even if they take down my videos, I wouldn’t lose anything in my life :D

  46. I have 2 situations I would like to ask about – one of which I think I know the answer already.

    1. Creating and monetising the video, where copyrighted material (in my case 2-3 sec song/sound audio clip) would be used to highlight the humour of the situation. The video would have entertaining character where a lot of pop cultural references (jokes and assumptions) would be used to create the humour, however the usage of the copyrighted material would be limited to that short audio.

    2. As above, but instead of using an actual recording of the clip, self a’capella performance of that 2-3 sec clip.

    It might be important to mention – unlike the guy asking about the spoken ringtones, this would be about 2-3 sec contribution to about 20-30 min entertaining performance.

  47. The answer is the same for both situations. You are claiming ‘fair use’ and you have a reasonably good claim, but the copyright holder(s) may disagree and if they do, the only way to settle the matter would be in court. Your claim is weak in a couple of areas: your purpose (entertainment/profit), the purpose of the original material (entertainment), the transformation of purpose (not much). And it is strong in other areas: (using only a small amount of the original material, adding a lot of your own material). The only difference in the second case is that there are fewer copyright holders involved (only the songwriters and not the people who own the copyright for the recording). Personally, I would say your proposed use use would fall under fair use for both cases (and I am pretty conservative in my views on that), but I am not the one who can decide such things.

  48. I have a question,
    I got a copyright claim against a video I shot of my son skiing at a competition this winter. There is music playing (in the background) of the video coming from the announcers tent while the announcer is speaking over my sons run. Since this music is not important to my sons run but the announcing is AND there is nothing I dan do to remove it from the video since I had no control over what is happening at the event and I am just a victim of the announcers shuffle settings, is their claim valid since this was on a mountain, the announcer was 1000 feet away from me and I’m guessing the event producers must have paid someone to play the music??

  49. Their claim is valid. Even if the event organizers paid a fee for the music that was only for music use during that event and would not cover broadcast rights. It is a really common problem (but it still infringes copyright law).

  50. Hello There,

    Let me introduce myself, I’m Limanol Adams, an upcoming independent artist.

    I’m working to have my debut probably this year, but mean while, I will like to prepare a promocional cover of a song, All of my by John Legend, but first I want to know if there a Mechanical Licensing or something else that I need, so that, I can play my own version of that song or upload it my youtube channel, as en example?

    Regards,

    Limanol Adams

  51. A mechanical license only applies to audio (if you wanted to sell the cover on iTunes, for example, you would need that). For a cover version on video, you need a synchronization license.

  52. Hi,

    I have a viseo of a live preformance of a mainstream band. Is it okay for me to post it on Youtube without any trouble?

  53. With regards to a copyright holder, would they look differently upon a brand or company compared to an individual if there is some sort of dispute?

    For example, if a brand / company produced content that was debatably transformative, and an individual did exactly the same thing, which would be more likely to cause offence? It would be great to get your opinion when taking monitory gain out of the equation. Say this hypothetical brand / company was not doing it to make money but rather a reputation for producing this transformative content.

  54. “company was not doing it to make money but rather a reputation.” But what is the purpose of building a reputation in this way? This is related to branding, isn’t it? As such, the new content would be considered as part of a marketing strategy, so you are not taking monetary gain out of the picture at all; the end goal of enhancing the reputation of the company is to ‘make more money’.

    A commercial purpose doesn’t necessarily rule out fair use, but it does weaken the claim. Therefore, to answer your first question: yes, copyright holders may would look differently at that.

  55. Great answer! Could I also ask, what would your opinion be on companies like Watch Mojo? A Youtube Channel that releases top ten lists and reviews. For example. one of them is “Top ten speeches form movies” and another might be “Top ten best movies quotes”. They would take footage from the original movie and edit it.

  56. I was watching one of their videos last night (top 10 bass players). To me, that would definitely fall under fair use (even if they are profiting), and I am very conservative in what I consider fair use. However, I am sure they have to deal with multiple and repeated copyright claims on almost every video they upload.

    If you are planning such a channel, you would just have to factor that in. How much time are you willing to spend on disputes, appeals and counter-notifications? You would probably also want an attorney that you can use when the copyright owners don’t immediately back down.

    I was considering doing a channel about film techniques, but decided I didn’t want to spend so much time on copyright issues, so I shelved it. Here is one of the videos: https://longzijun.wordpress.com/2014/04/03/film-scene-analysis-cinematography-and-mise-en-scene-in-american-beauty/

  57. Hi Stephen! Wow, what a robust and valuable post – I’m glad you covered this topic in such depth, as you’ve answered most of my questions about incorporating music into YouTube videos. I did have two remaining questions, though : (1) As far as the resources listed in “7. Where can I get music to use as background music?” are concerned, is it necessary to contact a musician who has released music under a Creative Commons License to notify them you intend to use their work? (2) In your opinion, what are the best resources if wanting to quickly sort music by type of Creative Commons License under which it was released?

    Thanks for all the helpful info!

  58. Hi! I have a question… I am planning on recording my own CD using Karaoke songs that I have purchased on itunes. My question is once the CD is made will I be able to sell it for my own profit? Or are there copy right laws that prohibit this?

  59. Sure there are. 1) The song itself is protected by copyright. You would need to get a mechanical license. This is quite straightforward. 2) The recording is also protected by copyright. unless permission is given to use the recording in this way (selling your own cover versions using THAT recording), you are definitely infringing copyright. if you want to sell your covers, you should get in touch with musicians and make your own backing tracks.

  60. Thank you for your reply. So even using the Karaoke versions to make the CD is against copy right laws even if I do not plan on selling them for profit correct?

  61. Yeah. You can solve the ‘composition’ copyright problem (and even sell the songs) by getting a mechanical license (these are no problem). To solve the recording copyright problem, you can either find a guitarist or pianist to work with OR look for Karaoke tracks where the producer allows for such uses (I suppose these should be called ‘backing tracks’).

  62. Hi,
    I’m interested in making a parody using the instrumentals of thrift shop. Would i be able to use only the instrumentals without breaking copyright? or would i have to get rights for the use of the instrumentals.

  63. Of course it would be best to get permission to use the song AND the instrumentals. The next best thing would be to create your own instrumental version. Are you sure you would want to do a parody of Thrift Shop. Thrift Shop is already a kind of parody of bling-obsessed rap songs. Parodies of parodies never work well.

  64. Hi I produce music and I got a ton of samples like drums and bass lines and wobbles off YouTube and people leave downloads to get those samples if I use them in my songs is that copyright?

  65. You can assume the samples are protected by copyright unless stated otherwise (e.g., “feel free to use my bass line”, “published under Creative Commons”). You might want to get into the habit of documenting what you use (e..g, take screen shots of the permission). You are unlikely to run into any problem, but what happens if you get lucky and get a hit song? Can you guarantee the guy who played the bass line you used won’t sue you?

  66. I was wondering if I were to use a remixed song from another YouTube channel would that be considered copyright? For example the song take ü there by jack ü was remixed by zeds dead but its on a channel with a standard license

  67. I have a video of my sisters graduation. Youtube has blocked this video because the songs the live orchestra/band was playing. Can this be disputed?

  68. Just like to inquire about my video. i got some video clip when we visit beach ..
    where walking on the beach then i take video w/ my family but during that time there was also a music playing coming from the hotel which they sing along and it was got recorded also at my video coz there an event a “wedding”. there music was so loud that is it around the public places.

    do i need to get license for the music? coz someone from the ad agency contact me and wanted to use my video for ad campaign. im not sure if they are going to use the whole video(video and and background sound/music) or just the footage only w/ no sound

  69. The songs are still protected by the copyright. It doesn’t matter if the music was recorded accidentally from the surroundings. IN any case, the ad agency should know that, so It should be their problem. If the ad agency wants to use the the music, they should be the ones licensing the music (as well as paying you for your video) .

  70. Hi there! I really find your post very informative. Thank you for sharing this.

    Anyhow, my question might have been answered already, but I’d like to ask if I could sing (a cappella) 2 lines from a copyrighted song and include it in my podcast. What if the reason is because the song relates to the podcast topic?

    i.e. Singing 2 lines from Alicia Key’s “Empire State of Mind” because the podcast topic is “NYC”.

    Thank you in advance!

  71. So are you asking if that falls under fair use ? Only a court case could provide a definitive answer. You are operating in a grey area, so a lot would depend on how you use the song.

    Tying the song more directly to the content would help a lot (e.g., “Homages to NYC frequently pop up in music from (singing) New York New York to (singing the 2 lines from the song”). The use of the song snippet could be considered educational.

    In contrast, starting the podcast with the song to catch the listener’s attention wouldn’t have the same effect. I doubt that could be considered fair use.

    A big TV production company would likely license the song just to be safe.

  72. Hi again. Thank you very much for answering question.

    To be more specific, I am planning to make a 10 minute podcast about random things.
    Let’s say the podcast is about “love and relationships”, and in the middle of the recording I decided to sing (a capella) 2 lines from “All of me” by John Legend because it relates to the topic.

    Would that be considered fair use? Or would i be in trouble?

    Again, thank you for being extremely helpful. It really means a lot!

  73. Silly question. If the venue has bmi, ascap and sesac licenses that means they are legal for live music, dj and dead music (karaoke). The dj has to legally purchase all the music he plays. The kj has to legally purchase all the music she plays. Does the band have to legally purchase the sheet music that they play? If not, why not?

  74. That doesn’t sound like fair use to me (you are not analyzing/critiquing music; nor is the music necessary to illustrate what you are talking about. It is just a kind of ‘mood or interest enhancer’

  75. You seem to be mixing up two different things. The venue is responsible for the performance license. The DJ is responsible for legally acquiring the tracks. You seem to be trying to merge two independent things: purchasing the tracks (DJ) and having the right to play music in public (venue).

    So yeah, if you want to do things according to the law, the band should not download or copy sheet music illegally. That is the band’s responsibility (not the venue’s). Of course, they do not have to purchase the sheet music; many bands play by ear. At the same time, they shouldn’t violate copyright.

  76. But, how do bands legally play music that they didn’t write? Wouldn’t that be the same as a dj that downloads music illegally?

  77. Sorry, you are comparing apples to oranges. You should be comparing a dj downloading songs illegally to the band downloading sheet music illegally and then learning the song from the sheet music. It is the illegal acquisition of the copyrighted material that is the problem.

    Once both the dj and the band get to the venue, the venue should be paying a licensing fee for the right to host live music performances.

  78. Pingback: Copyright for Music in a Streaming Video

  79. excuse me, what if I upload on my blog only the link to the official youtube artist’s page? thans for replying!

  80. No problem…you can also embed their YouTube videos on your page (If people don’t want you to embed, there is a ‘no embed’ function that they can choose. Therefore, if the uploader does not choose that function, it is a kind of implied permission).

  81. I video recorded a live performance of a band, with permission but not written, they don’t own the copyright of their songs, I want to release the video to fans using a Limited Manufacture license from PRS (UK) which covers publishing rights can the band prevent this

  82. Thanks for that. I had enquired with the PRS and they said LM license should be OK.

    Trawling the internet I found a comment that said If I had the bands permission as the producer of the video the video element would be my copyright? As I said I didn’t have written permission but think I can establish that I was filming with permission through email correspondence where the filming was discussed and the band initially offered to buy the footage, at one point commenting it was very good, but now saying it’s sub standard.

    They were a “Big” band in the 80s/90s but not sure if they are currently on a label will check this out, but in all the correspondence only their management was mentioned and they never really became involved.

    Had an email from one band member saying they wouldn’t endorse it but i didn’t expect it or want them to, and also that they couldn’t stop me. Then received an email from their media representative saying “please” do not proceed?

    The end result was aimed mainly for the fans and I wouldn’t envisage any large sums of money being made I did however offer the band what I thought was a “fair return” on any videos that were sold.

    Again thanks for the prompt reply.

    .

  83. I want to upload a video that is a biography of a band, and I want to use one of their songs in the background. The band is relatively unknown and not signed to a big label. The song plays for a long time after I finish talking about them. I’ve tried to contact the band through Youtube, but they haven’t responded. I don’t monetize my videos so that isn’t an issue. I also don’t care if there is a copyright claim, but I want to avoid the video getting taken down. How much risk is there?

  84. Try contacting them through another method (YouTube isn’t a great way to contact people). You should be able to track down an email somewhere. The risk is relatively small as most copyright holders choose to monetize videos rather than take them down, but that small risk is still there. You seem to know that already, though.

  85. Hello and thank you for all of your helpful insight.

    My question is… I’m a professional picture editor and have edited many live music performance DVDs for top bands over the years. Since I was hired by the artist to edit and master these performances for air and artist DVD’s… does this allow me permission to use promotional clips for potential clients. Can I put a reel of these clips on Vimeo if I use a private account for potential client viewing only? Can I alter a clip maintaining the live music track while over cutting some of the artist with other material?

    Thank you for your response.

  86. Pingback: “The Internet, The New Headache Of The Copyright Law” | skylight

  87. “Does this allow me permission to use promotional clips for potential clients.”

    No. Not unless you were given that right in a contract or were given permission.

    “Can I put a reel of these clips on Vimeo if I use a private account for potential client viewing only? Can I alter a clip maintaining the live music track while over cutting some of the artist with other material?”
    All these things ‘can’ be done, but are you asking if you have legal rights to do that? The answer to that would be that you are infringing on copyright.

    If you want to be safe, you can ask for permission.

    To save trouble in future, why not start putting those kinds of permission requests into your contracts?

  88. HI there Longzijun.

    What if I’m vlogging and the music comes on and i upload to youtube? i see many you tubers doing this and their videos are still monetized.

  89. you mean the music just suddenly appear in the background? That is still copyright infringement…It could be that the Content ID match system didn’t pick it up because it is in the background (however, it might still be picked up later) or it could be that some of those videos are being monetized by the copyright owners of the music. Copyright rules still apply no matter whether the music in the video was put there on purpose or accidentally.

  90. Is it okay if I can upload a remix of the Versace instrumental with my rap on it without permission and if it goes viral would I get money?

  91. Is it okay if I can UPLOAD A remix of the Versace instrumental with my rap on it without permission and if it goes viral would I get money or not?

  92. 1) it is infringing copyright, if that is what you are asking 2) Who knows? You could get money or the copyright holder of the original track could decide to monetize it instead or if your song got big enough I suppose the original copyright holder could decide to sue you. Anything could happen.

  93. I was considering making custom monopoly boards like the one you find in the stores with different themes. Do these games have licenses? Could I sell custom game boards without copyright infringement? For example if I made a monopoly game with all of my families faces and all original images.

  94. After many hours of search there seems to be nobody in my situation. I record local bands & tribute bands as a hobby free of charge. I usually upload them to YouTube and post them on the band(s) facebooks and twitters so they can have promo material. Recently an artist had youtube remove every single song I posted from a tribute band. So, I am not the one covering the song, nor is the video their work, is there any hope to counter notice that type of copyright takedown? None of us profit from it so I found that to be a bit mean on their part.

  95. It is mean, but they do have the right to do this if they are the copyright owner of the music composition (that is, if the artist wrote the song). You would need to get either permission from them or negotiate a synchronization license with them. This is explained in the section of cover versions.

  96. Hello,

    I don’t think this has quite been covered but:
    I’m putting together a video for my friends. It’s a silly video of the story of how we all met and in the video I have some music from a rock band placed here and there. It’s basically background music for some scenes, and each song has been cut up and rearranged to make them shorter so it’s not the complete song. I’m not selling this or putting it on YouTube or online at all for that matter. It’s just for us to enjoy and even to give to other friends if they want a copy. Is that bad?

  97. Hi,I am working on my career as a professional wrestler. They would like to assign me a song for my theme/entrance, but i would like to use a song by a certain artist. Do I have to pay that artist in order to use his song or no? ,Thank you.

  98. for video…sure you do

    for live events…you would probably have to consult an attorney for a definitive answer. Generally, venues (bars, arenas, stadiums) are responsible for paying music licensing fees (i.e., you wouldn’t pay, the venue owner would), but these are for non-dramatic uses of the song. If you are interpreting pro-wrestling as a sport, it would be non-dramatic use.

    However, pro-wrestling could also be interpreted as a kind of entertainment with dramatic elements (e.g., the music is being used to develop a character in performance). In that interpretation, you would be responsible for obtaining the right to use the song.

    Because there are different possible interpretations, you would need to get expert legal advice for a clearer answer.

    In any case, the ‘they’ in your question, should be the people dealing with these kinds of legal issues, not the wrestlers.

  99. it is infringing copyright, but it would be difficult to see you getting in trouble for showing a video to a few friends. In the past, we used to make mix-tapes on audio cassette tapes for our friends. That was copyright infringement as well, but the scale was so small that no one really cared.

    If it is posted online, however, that is a different story.

  100. Pingback: The Scope and Limitations of Copyright as per Philippine Law and Jurisprudence, In Relation to Works in the Internet | nwqvivab13

  101. So, basically, I can’t upload a video of me and my friend singing Bright at our 7th grade talent show? I can’t upload covers of songs to jump start my dream of becoming a singer and I can’t play guitar and sing a song and upload a video of it? What can I do?

  102. There are plenty of cover version performers on YouTube. You just have to be aware of what you are doing. I sometimes help my students post cover versions and original songs on YouTube (https://longzijun.wordpress.com/projects/works/student-music-originals-and-covers/). All of the cover version videos have been monetized by the copyright holder, but are still online and viewable. However, I also have a video of a student talent show that had the audio muted (because of a cover version).

    If you want your videos to be 100% safe, you need to have the necessary rights for everything in your video (that basically means getting permission or writing your own songs).

  103. Stephen, thanks for the excellent post and answers to the many questions.

    Can I get clarification on a couple points? (1a) If I write and play my own cover music to a song, then I would only need a synchronization license to upload a video of me singing and performing the song, correct? Or would I also need a mechanical license? (1b) If I click on the YouTube box that says,
    “Monetize my video. This is my cover of a song written by somebody else. Learn more,”
    does that essentially give me the sync and/or mechanical license?

    (2a) If, instead of writing and playing my own cover music, I obtain a Master Use license from a Karaoke/backing tracks producer, then I still need the sync and/or mechanical license from the publisher, correct? (2b) Does clicking the YouTube box referenced above give me those licenses? Or do I need something else?

    (3) Same as (2), but instead of showing me singing, my video shows a puppet singing the cover song. (Here’s an example: https://youtu.be/95aNz5txXvw.) Does this qualify my video as fair-use parody so that I don’t have to split the monetization with the music publishers?

    Thanks so much!!

  104. 1a) Just the sync license
    1b) No, sync licenses must be negotiated with the publisher
    2a) yeah
    2b) No, YouTube does have an arrangement with some publishers to allow for covers, but the publishers can change their terms at any time. Most publishers are accepting of covers, but even if they monetize your video, it does not mean that they are agreeing that you have the legal right to upload it.
    3) Parodies are tricky: They usually involve some changes to the lyrics and/or music, parodies are not protected by fair use provisions in all jurisdictions, fair use is a defense against copyright infringement claims not a kind of license

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