“Your Video Was Not Posted”: Copyright Issues and Live Streaming

By Carolyn Wimbly Martin and Ethan Barr

Her laptop is strategically placed on a countertop, facing her turntables and elaborate light display, both of which took the entire day to set up. She is a professional DJ, so she is accustomed to enlisting the help of several technicians and preparing in an established venue, rather than her living room via a social media platform. All the music is queued up. Thirty seconds into her set, the live feed is disabled, leaving her and her fans disappointed and confused.

Due to the COVID-19 pandemic, live-streaming music on social media platforms has proven futile primarily because of algorithms that automatically detect copyrighted works. DJs have found this issue particularly difficult, as their livelihood is premised on licenses for the performance rights to other people’s musical works, in order to play them for a live audience. When ticket sales account for most revenue, the profession’s income stream is significantly reduced.

While DJs may be the most negatively affected music professionals, the impact also reaches any artists who use musical samples, businesses that host open mic nights or even trivia game hosts who play music while they tabulate team scores. Virtual venues may provide viable avenues to recoup some lost income, but not without addressing certain legal and technical challenges.

Why do social media platforms remove feeds?

When music is streamed through social media platforms, recorded or live, performing rights organizations (“PROs”) are unable to grant direct permission to individual users because the PROs already have direct licenses with the platforms.

Generally, a social media platform like Facebook removes streams because they violate synchronization rights, the right to use music that accompanies visual elements, or mechanical rights, the right to stream or sell physical copies of music. Removing streams does not involve these performance rights. (For a primer on musical licenses and a glossary of terms, see our earlier blog.)

However, a platform may also remove streams because they violate the platform's terms of use on its face. In the cases of more popular streams, musicians or their publishers will reach out to the social media platforms directly to file takedown notices. The only way to dispute those notices is through each platform's appeals process. Although this may eventually prove effective, the process may be time consuming.

Potential solutions

For videoconferencing platforms outside of social media, PROs may grant licenses. For example, ASCAP can provide licenses for songs in its repository if Zoom is the intended venue. ASCAP charges $266 annually for an artist or venue with a small audience. This price would not increase unless the artist or venue achieved revenue over $25,000 or planned to stream to tens of thousands of viewers. The process for obtaining what they call a "clickthrough license" is quite easy through ASCAP’s website. The user simply pays the fee and ASCAP responds within three to five business days to open an online account. BMI and SESAC have similar licensing schemes.

Although these PROs offer blanket licenses at a lower cost, those seeking to stream music may negotiate with copyright owners individually. While it is not the most advisable course of action for entities seeking licenses for multiple songs, those with preexisting relationships with copyright owners may be able to lower the cost of a license. This may be useful for entities who require licenses for a narrower array of musical works, such as a tribute band.

While many individuals have resorted to Twitch (a streaming service primarily aimed at video games) as a popular host service for concerts, Twitch has recently come under fire for allowing its users to play unlicensed music. Licensing entities, therefore, have begun moving away from suggesting this platform.

It is worth noting that each platform has its own terms of use and policies regarding copyright, so it may be useful to communicate with the platform prior to purchasing a license. Perhaps record companies will begin to partner with licensing entities to ease the tension surrounding copyrights of musical works and sound recordings that that has resulted from the quick transition to remote environments.

There are entities that have established agreements with some record labels and PROs to help musicians and DJs live stream with limited copyright infringement liability. For example, the British company MixCloud prides itself on its MixCloud Live platform, “the only legal and licensed streaming platform for creators to upload and live stream their shows.” While an account with such an organization may incur standard fees, there is little to no risk that the stream will be removed.

In summary

As has become the norm in 2020, the legal landscape is slowly changing to adapt to an increasing need for remote activity. Lutzker & Lutzker is working to highlight the evolving needs of copyright owners and licensees in light of advances in technology and unprecedented circumstances. We will keep you updated on our progress and those of others.