by Spencer W. Weisbroth
Spencer@Weisbroth.com

It has been less than five years since Geffen Records released a digital copy of a world-premier Aerosmith song on-line, which marked the first time a full-length, commercial entertainment audio product was released on the Internet. And in less than five years, internet audio, in all of its forms, has become hot, hot, hot. For many of you, the internet is a boon — a fabulous new way for you to distribute your audio work, side-stepping and expanding away from the traditional gate-keeper distributors. However, as in the analog world, it is axiomatic: if you use someone else's prerecorded music in your production, it must be licensed.

Licensing music on the Internet has its roots in, and is a logical extension of licensing music in the analog world, which is to say it mirrors and magnifies an already complex area of the law. Recently, the President signed into law the Digital Millennium Copyright Act ("DMCA"), which establishes new laws regulating the licensing of music on-line. One leading legal commentator has described the DMCA as "shamelessly complex." I have to agree.

To understand music licensing requires a basic understanding of copyright law. Copyright law generally grants copyright holders certain exclusive rights, including the right to publicly perform and display, reproduce, distribute, publish, and transmit their work. (Be aware. Each of these terms has a specific legal definition, which for the curious are defined in 17 USC 101 - available on-line at http://www.loc.gov/copyright/title17).

It also requires an understanding of an important peculiarity of music law: in each piece of recorded music there are two discrete copyrights, 1) the copyright in the underlying musical composition — the words and music — which is usually owned the writer/composer of the song; and 2) the copyright in the sound recording itself, which is usually owned by the record company. Permission from both copyright holders is required for almost every conceivable use of their music, and for almost every conceivable use of music there is a different license.

This has not changed under the DMCA; you must still obtain permission from each copyright holder. One of the things which makes this more complicated is the array of technological means that exist to distribute audio on-line.

To deal with this, the DMCA creates a matrix, with the distribution technology driving the determination of what licenses are necessary and from whom, and in some cases how much those licenses will cost.

Complicating matters, and making them more expensive, is that for the first time in copyright law history record companies have been granted a public performance right in their sound recordings when they are distributed on-line. A public performance right? Basically, a public performance is the performance of a work in a way that the general public can receive and hear it. For example, a radio station's over-the-air broadcast of a song is a public performance.

For example, when a radio station broadcasts, or publicly performs, a song the station must pay the song's writer and com-poser for that use, which is usually done through one of the musical performance rights clearance societies: ASCAP, BMI and SESAC. Odd as it may seem, the radio station does not have to pay the record company because the record company has never had, and still does not have, a public performance right in their recordings.

Without digressing into the economic and political reasons, which I think are pretty obvious anyway, when Congress was considering the DMCA, the big record companies in particular lobbied to "fix" the public performance anomaly in the on-line world, which Congress dutifully did, granting this right to record companies for the first time. So, returning to the example, if a radio station now streams its audio on the internet it must pay not only the song's writers and composers, but the record company too.

As this plays out practically, record companies have muscled their way to the trough.

It would be folly to try here to review all of the machinations and ramifications of the DMCA. However, it is important to alert you that if you use someone else's music in your work, before you can distribute it on-line — whether it's distributed in RealAudio, LiquidAudio, MP3, .AU, or any other format — whether it's streaming live, or stored permanently on your web site — whether it's available for free or pay — whether it is audio-only or A-V — you must get permission from either ASCAP, BMI, SESAC, Harry Fox, the record companies, and in some cases all of them. And, if you are confused about what licenses you need, and from whom, don't worry. You are in good company. In trying to understand the DMCA, I have seen the best legal minds of my generation destroyed by madness, starving hysterical naked . . .

Do you have a general legal question, the answer to which might be of interest to the independent radio community? Send me an e.mail, and I will try to answer it here.

AIRSPACE

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