Performance rights licensing streaming video

During the Covid 19 pandemic, musicians were isolated from their accompanists, live (in person) venues were closed by health-orders, and as the shelter in place orders expanded from weeks to months, musicians looked to busking on live-streaming video platforms (YouTube, Facebook, Twitch etc.) to try to earn a living. In the course of these performances the musicians generally take requests to supplement their own repertoire.

Assumptions for this document:

1. This concerns the musician's rendition (cover) of a copyright work, often by request, not a recording of the work performed by the original artist.
2. These copyright songs are used in video and not otherwise made available for sale. (Mechanical license are beyond the scope of this document)
3. There is a presumption that money is changing hands through donations and possibly membership sites like Patreon are involved.
4. The live audience could generally be considered "a normal circle of friends", but playback of the recorded live stream may fall outside of this exemption.
5. In addition to performance licensing, separate synchronization permission is also required for putting music to film, which would be impossible to anticipate in a live request scenario.

Overview

In the past, emerging artists would "cover" popular songs on YouTube for advertising and audience building purposes. These emerging artists would generally be very straightforward about providing the name of the covered song and the artist who made the song famous. The copyright holder of the song has three options, do nothing, monetize the video and collect advertising royalties, or take down the video. Traditionally, the emerging artist would license downloads through iTunes and would not monetize their videos.

In addition to COVID 19, the industry took a double hit as platforms switched to a streaming subscription model. CD-Baby no longer makes CDs, nor offers downloads, iTunes download links are redirected to Apple Music streaming page and Google Play is slated to be shut down and music.youtube will stream audio. With the download income drying up and the artists adding pay links and subscriptions, this appears to change the advertising only relationship between the artist and the video performance.

Definitions

Performing rights are the right to perform music in public. It is part of copyright law and demands payment to the music's composer/lyricist and publisher [...] Performances are considered "public" if they take place in a public place and the audience is outside of a normal circle of friends and family, including concerts nightclubs, restaurants etc. Public performance also includes broadcast and cable television, radio, and any other transmitted performance of a live song. Permission to publicly perform a song must be obtained from the copyright holder or a collective rights organization.

—Wikipedia:Performing rights

A music synchronization license, or "sync" for short, is a music license granted by the holder of the copyright of a particular composition, allowing the licensee to synchronize ("sync") music with some kind of visual media output (film, television shows, advertisements, video games, accompanying website music, movie trailers, etc.).

—Wikipedia:Synchronization rights

Who is responsible Some consumers believe the music services handle streaming licensing for them (YouTube, Spotify, Pandora, SoundCloud, CD Baby, Bandcamp). This is only partially true. For example YouTube pays royalties to some publishers that have agreed to a share of ad revenue in exchange for the required synchronization rights to stream video. However, most publishers have not agreed to this, and instead follow the more traditional practice of requiring the individual to obtain synchronization licensing before posting.

Perfomance Rights Organizations

• ASCAP licensing instructions have some concrete answers about the streaming platforms themselves.
• BMI licensing instructions broach the revenue question. Does having a Patreon subscriber option or donation link constitute "the potential to generate revenues"?

ASCAP

Do I need an ASCAP music license if I'm streaming my performances through a third-party, such as YouTube, Facebook or Instagram?

Fortunately, most popular live-streaming platforms, such as YouTube, Facebook, Instagram Live, Soundcloud and Twitch are licensed by ASCAP. If individual performers, ensembles and venues only use a licensed platform to stream their content, no other ASCAP licensing is necessary for that streaming activity.If performers, ensembles or venues wish to stream their content through their own digital platform, ASCAP offers a simple, click-thru license that suits most needs: https://licensing.ascap.com/?type=digital.

IMPORTANT NOTES:If your music use is only in content posted to your social media account(s) (ex: YouTube channel, Facebook account, Instagram account, Soundcloud account, Twitch account, etc.), you do not need an ASCAP music license. If your content has been blocked, you may require a synchronization license. Contact the service directly with additional questions. If the content on your website/app is only accessed through an embeddable media player from a third-party service such as YouTube, Soundcloud, Spotify, Twitch, etc., you do not need an ASCAP music license. For additional questions about third-party players, contact weblicense@ascap.com.

BMI

'General Website Performance Agreement

The General Website Music Performance Agreement typically applies to a commercial entity that has the potential to generate revenues from operating a website or mobile application but is not considered a Music Service, as defined under the Music Service tab. Some possible sources of revenue may be non-music related subscription fees, E-commerce, advertising, or sponsorships.'

YouTube compliance suggestion

One way to mitigate compliance issues and possible DMCA take down notices (channel strikes) might be to go ahead and take requests during the live streaming session, but take down the recorded version of the live stream and edit it into several shorter parts that does not include the copyright material. I'm seeing YouTube vloggers taking their live streams (generally 1 hour) and then cutting them up into 12 to 20 minute segments and re-publishing as 3 (or more) videos.

1. Encourages people to be present and participate in the live stream. (Scarcity)
2.  Eliminates having videos hanging around that could cost you a copyright strike or residuals at some later date. (Having your venmo / paypal chiron during a requested cover song kind of commercializes it.).
3. Having 3 more videos gives you 3 more reasons to re-engage across your socials.
4. On a ten minute plus video, you can run as many ads as you want, I believe front-loading advertisements chases music listeners away.

• Tuber suggesting 10 minute segments with advertising in the middle

Facebook compliance suggestion

Need more research, but it is looking like Facebook should be limited to your own songs, or make sure that you working from a set-list that is pre-cleared.

Facebook clarify what October update means for artists on the platform

A spokesperson for Facebook has now confirmed to NME that, although new guidelines will come into effect across the site in October, the music guidelines have been in place for some time and will not affect artists using the site to livestream gigs or share their music.

Music Guidelines (facebook)

Use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licenses.