How to Clear a Music Sample, Part II: Performance Licensing
It’s not unusual for an artist to pay tribute or homage to another artist that they grew up admiring or who has inspired their own work. Many musicians like to show their appreciation for their biggest inspirations, through cover songs, sampled beats, or ‘borrowed’ lyrics or arrangements. That just goes to show the power of music, the legacy and timelessness of a really good song, a piece of art that moves through the ages and keeps inspiring new artists to pick up an instrument or a microphone and create their own art.
But paying tribute to another musician is one thing; giving them credit is another. Giving credit where credit is due is one of the cornerstones of musicianship, and something that should always be at the forefront of any artist. Failing to give proper credit, either to a singer or a songwriter, can result in serious damage, both to your reputation and your bank account.
One popular example is the $5.3 million in damages that Pharrell and Robin Thicke had to pay the Marvin Gaye estate for using the ‘Got To Give It Up’ beat in their hit ‘Blurred Lines.’ Sure, these are established artists who luckily have the money to pay such damages, but they still took a big hit to their reputation as professional musicians. For newcomer artists, a lawsuit like this can be even more damaging, because budgets are tighter and you want to showcase exemplary musicianship and professionalism to build relationships in the industry.
Music licensing 101
We’ve already established that giving proper credit to the original copyright holders of a song is crucial in establishing your reputation as a true professional and avoiding legal troubles. But how do you go about that, and how does music licensing work, exactly?
We’ve covered the basics of music licensing in a previous article. Basically, every song has two different copyrights: one for the sound recording and another one for the underlying musical composition. If an artist is looking to use any part of a song, like lyrics, melodies, chords, or beats, they have to get a mechanical license. In the case of pop or hip-hop artists, where beat sampling is part of the culture in many ways, a non-mechanical license is also required.
The copyright holders for these licenses are usually record labels, while the musical composition copyrights are held by agencies like Harry Fox or other music publishing companies. These agencies represent music composers directly, or they can direct the licensing fees to the right holders on your behalf.
But besides mechanical licenses and sound recording licenses, there are also other types of licenses that are required when an artist wants to perform a song or parts of a song. A performance license is required whenever an artist wants to perform a song by someone else live, in front of a public audience. This can be a small cafe or club, a live venue, on the radio, or on an online streaming platform. Last but not least, there is also something called a synchronization license, which is required if you’re looking to sync music with visual media.
It all goes down to the question: what do you, as an artist, plan to do with a piece of music created by someone else? If the answer is, you want to cover it or perform it in front of a live audience, then you need a performance license. So, how does that work?
What is a performance license?
A performance license is required whenever someone wants to publicly perform a song or a piece of music created by someone else. Whenever you go to a pub, a club, or a cafe and you hear music live on stage or through the speakers, you can be sure that the owners of that business have a performance license that grants them permission to play that music. That’s because every live performance or streaming of a song means royalties gained for the singer and composer of that said song. This is how artists make their living, so it’s important that they are credited whenever their work is played for the public.
A performance license is basically an agreement between a music end user (a performing artist or a business/venue) and the owner of the music composition copyright. This agreement grants the performer or venue the permission to play a song in public, whether that’s online, on the radio, tv, or live on stage.
According to The American Society of Composers, Authors and Publishers, or ASCAP, a public performance does not mean playing cover songs in your living room for your family or close friends. Instead, the company defines a public performance as ‘one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances).” Furthermore, a public performance is one that’s transmitted to the public, on the radio, television broadcasts, cable television, or on the internet.
When do you need a performance license?
A common misconception, especially among newcomer artists, is that the performer doing a cover or a public performance of someone else’s song is responsible for obtaining the required performance license from the copyright holder. The truth is that the individual performer is not responsible for doing this. Instead, the business owner, aka the owner of the tv network, the radio station, or the live venue has to get the licensing in place before a public performance event.
Businesses cannot shift responsibility on the shoulders of the performers for not getting the right performance licenses. The business ultimately gets the most benefit from the performance, so the responsibility lies with them. At the same time, most copyright organizations don’t grant licenses to individuals, only to businesses.
There are, however, some exceptions when it comes to granting performance licenses. If music is played as part of a worship service, or as part of an in-person teaching activity at a non-profit educational institution, then a performance license is not required.
When it comes to social media channels, things are a little bit different. You’ve probably already watched YouTube vlogs that seem to have the sound missing for a small portion of the video, or have noticed influencers turn off music in their videos to avoid being penalized by YouTube. That’s because any music used in a YouTube video needs to have a license in place, otherwise it will be swiftly removed. This is why you’ll sometimes hear the same tune played on different channels; YouTubers usually use a subscription-based third party like Epidemic Sound to get copyright-free music they can use in their videos.
The same thing goes if you want to use music in your Instagram or TikTok reels. Fortunately, the platform offers options for royalty-free music that you can add to your content without having to obtain a license.
When it comes to live performances on social media, and not pre-recorded videos or reels, things are very straightforward. For live performances streamed on YouTube, Facebook, Soundcloud, or Instagram, individual artists don’t have to worry about performance licensing. These platforms are all already licensed by ASCAP, so no additional licensing is necessary.
Who grants performance licenses in the U.S.?
In the United States, there are several major agencies that handle public performance licensing. These are called PROs, or performing rights organizations, and they include ASCAP, BMI, and SESAC. Business owners and entities need to contact these three organizations to obtain the relevant performance license for songs they want to play to their public. Each organization covers a different catalog, so it’s important to get a performance license from the right source.
Public performance licensing fees are different for each PRO, and the amount will depend on factors like the size of the venue, capacity, business hours, and so on. Usually, a business will purchase a performance license for a catalog of works, dubbed a blanket license, not just an individual song, and this license can be renewed on a yearly basis.
The fee can range from $300 to $500 per year for a small business, and reach up to $9,000 per year for a larger venue, according to The New York Times. By getting a blanket license for a PRO’s catalog, a venue has the right to publicly perform any of the songs in that catalog for as long as the license agreement is valid.
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