The Basics of Music Licensing in Digital Media: 2011 Update

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Businesses that are involved in digital media use music in many ways—and most require some sort of license to make the use legal. Whether the music is used in an advertisement or a music video, on a Web site or delivered via another digital platform, licenses are usually required. Unfortunately, there are a variety of rights that may be needed, depending on how the music will be used, so knowing what you need to do to avoid liability is not always easy.

Making it even more complicated is that fact that the different rights are often obtained from different individuals or groups, and it is not always easy to determine where to go to get the necessary rights. This advisory provides a basic description of some of the rights necessary for some of the most common uses of music under United States laws and where to obtain such rights.

Current copyright laws

Before discussing where to get permission to use music, you must first understand the different rights that can be implicated by the use of music.

Under current United States copyright laws, songs and other creative works first published as long ago as 1923 could still be protected by copyright. Section 106 of the Copyright Act gives the owner of a copyrighted work a number of exclusive rights with respect to the work, including the right to reproduce the work, the right to distribute the work, the right to prepare “derivative works” based the work (e.g., a new arrangement of a song or a translation of its lyrics into another language) and, in many cases, the right to publicly perform and publicly display the copyrighted work. The copyright owner also has the right to authorize or refuse to authorize others to exercise any of these rights. As a result, permission from the copyright owner—i.e., a license—generally is required any time copyrighted music is used.

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