3

It's generally known that if you use a song to create a music video, you must have obtained a master use license to publish the track as a part of the music video, and also a synchronization license to synchronize your video with the music.

However, what happens if you make a music video using the song, and then you remove the audio from it when publishing? That way, to view it as intended, the viewer will need to obtain a personal license for the music, for example from a streaming service, and start the music track at the same time as the video starts. The video metadata could point viewers to ways to legally listen to the song, and that it is recommended to view the video with the audio in the background.

What license, if any, would this usage require? My intuition is that this still requires the synchronization license, as the video is still synchronized to the audio, it's just that they're stored separately. On the other hand, an argument could be made that a sync license is made available for a specific recording while this video works with any cover version.

I'm interested in answers both specific to the environment as well as for general distribution.

2
  • Hard question. Well posed. Almost surely has an answer. I don't know what it is without extensive research. – ohwilleke Nov 17 '20 at 4:09
  • 1
    I mean, this isn't a new idea. It pre-dates Youtube. If you've ever heard the meme "The Dark Side of Oz" which started in the early 90s and holds that if you start the Pink Floyd album "Darkside of the Moon" at the exact right moment, it syncs up perfectly with "The Wizard of Oz" film. There was even a parody of the "The Wizard of Oz" done by the Muppets where one character breaks the fourth wall to let the viewers know they need to start Darkside of the Moon at this point in the film (which, was sadly the best gag in the parody.). – hszmv Nov 17 '20 at 14:56
0

Disclaimer: I am not a lawyer and the advise provided is from independent research and past knowledge.

Answer
If there is no copyrighted music present, the video will not be affected by the Digital Millennium Copyright Act (DMCA), since the only content present is a dance. You are also permitted to use the name of a song in the title of your YouTube video (See Ref 1). However, directly encouraging your audience to play the specific music with the video, through separate music streaming applications, is a legal grey zone.

Don't write:
Music Video for "Song Name". Play it together at the same time with streaming
Which will tell the audience to bypass licensing by using a personal license with a music streaming account.

To stay safe, in the description write something like:
Music Video for "Song Name"; meant to be played synchronously.
Which will tell people that the video was designed to be played at the same time, without instructing the audience to play any music.

The key difference is that by removing "with streaming" you are simply stating the intended way to enjoy the video rather than telling them to play a specific piece of music with the video.

References and Additional Links:
Ref 1:
https://www.thelaw.com/law/are-song-titles-lyrics-protected-by-copyright-or-trademark-law.317/

Copyright law provides exclusive protection to someone who creates an original work of authorship that is fixed in a tangible medium of expression. What does that mean to people who don't understand legalese? It means that the thing you create must be:

  • Some type of creative expression (such as a painting or song) which is;
  • Sufficiently original and independently conceived by its creator that is;
  • In some permanently stored format so that it can be reproduced (such as a painting on canvas but not a design drawn in water which is only visible for a moment.)

Song titles generally don't fall within the protection of copyright law since most are not sufficiently original or independently conceived by the artist. Are phrases like "born to run" or "on the road again" sufficiently original so as to deserve legal protection?

Ref 2 (Derivative Works):
https://www.legalzoom.com/articles/what-are-derivative-works-under-copyright-law

10
  • 4
    You can be a derivative work without incorporating any of the original into your work. So, even without encouraging the audience, it isn't automatically in the clear. – ohwilleke Nov 17 '20 at 4:10
  • I'm not sure I follow how those two descriptions differ. How is one directly encouraging it and the other not? It might help if you cited some of the independent research you did in your post. – Ryan M Nov 17 '20 at 9:15
  • @ohwilleke >You can be a derivative work without incorporating any of the original -- how does that work? I thought that a derivative work always had to incorporate some property of the original to be considered derivative. In my music video example that would be the timing of the cues and the length of the song, although I don't believe those can be considered sufficiently original to be copyrightable. – Danya02 Nov 17 '20 at 13:08
  • "by removing "with streaming" you are simply stating the intended way to enjoy the video" -- I'm not sure, but I think you can make the argument that the music is such an important component of the music video that viewing it without it isn't enjoyable. It's not a perfect analogy, but it's like you sold flash drives and said "works best with a PC" -- it's true, but only in the sense that it's useless without a PC. And if PCs were illegal or regulated, you can say that by selling a thing that only works with one, you're encouraging consumers to obtain one (possibly illegally). – Danya02 Nov 17 '20 at 13:17
  • 3
    Derivative works either need permission from the copyright holder, or must clearly fall in fair use. – DapperDuck Nov 17 '20 at 13:18

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.