THE USE OF MUSIC ON A MULTIMEDIA WEB SITE

IVAN HOFFMAN, B.A., J.D.


The static world of the two dimensional text and small graphics web site is quickly becoming the black and white television of the Internet. As creativity and capacity catch up with each other, many of tomorrow's web sites will be increasingly more inventive, utilizing many different media. This presents the owner of the site, the designer of the site and of course the attorney for each, with interesting new challenges in order that the rights of all parties be preserved.

With the increasing use of music on the Internet, let me discuss some of the issues that must be faced in those circumstances.

There are several rights that are initially owned by the creator of the music and the recording embodying that music. It is important to note that separate rights exist in the music and the recording of that music in a particular version. These separate rights are themselves separated into separate rights and each must be "cleared" or licensed in order that they be permissibly used on a web site.

The first right that may be applicable is that of mechanical reproduction of the underlying song. This is the right that allows a user to reproduce a musical composition on a copy.

This is the definition of "copies" under the United States Copyright law:

''Copies'' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''copies'' includes the material object, other than a phonorecord, in which the work is first fixed.
Your first response might be that putting a musical composition on a web site is not making a "copy" since the web site is not a "material object." But of course in order to get the composition on the site, you do have to make a copy of the same using some form of reproduction software and accompanying hardware.

As a side note, this right came into the 1909 Copyright law in relationship to piano rolls. It was designed to prevent copyright owners of a song from having a monopoly on the composition since the right, then and now, is subject to what is known as a compulsory license. It is the same right that allows singers to sing someone else's song on a phonograph record, now CD. My, my how far we have come.

The second right that needs to be obtained is a right to publicly perform the composition. Whenever a musical composition is performed in public, this right must be licensed and these are usually handled by ASCAP or BMI. Since whenever a viewer logs onto the web site containing a copyrighted composition it is a "public performance," clearances must be obtained.

Finally, if the music is used in timed synchronization with images, i.e. as a soundtrack to an accompanying video or even as background to a still photograph, then another right comes into play, called a synchronization right. An appropriate "synch" license must therefor be obtained.

Separate from the rights in the song are the rights to use a particular version of the song, perhaps off of a CD by a particular artist. These rights may be owned or controlled by separate copyright owners and therefor separate licenses must be obtained. Most often, the recording company that manufactures and distributes the recording owns the recording right while a publishing company owns the rights in the song. The license that is required is known as a "master use" license for it is a deal in which the owner of the recording, the master, gives the right to someone else to use that recording. As part of the license agreement, the user of the master may have to pay fees to the American Federation of Musicians, American Federation of Television and Radio Artists or others for the right to "re-use" the performances contained on the recording.

Additionally, for uses on the Internet, licenses must be paid for the right to perform the recording and there are royalty rates established for this periodically by the copyright tribunal.

Note, however, that if the user of the composition elects to record the composition without resort to someone else's recording, no master use license is required, nor any re-use fees. But this would not eliminate the need for the licenses regarding the song.
 

The Contractual Relationship Between Owner and Web Site Designer.

Having said all this, other issues present themselves. Example. If the owner of the web site has hired an independent contractor web site designer to develop, create and post the site, someone has to be responsible for not only obtaining these clearances but for representing and warranting that those clearances were obtained. This has to be covered in the agreement between the web site designer and the owner. (see the article entitled "Who Owns The Copyright In Your Website?")

There are of course many other issues that are involved in obtaining these licenses and clearances. They may deal with term of use, scope of use, ancillary rights and so on. These may be situation-specific and should be handled by an attorney with experience in the field.

And if you need any assistance negotiating these licenses, just click on my email.

© 1996 Ivan Hoffman

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This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

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