The issue with playing covers on Facebook
Here's why playing a cover song on a platform without a license could get your Fan Page taken down completely
We’re Rachel Hurley and Frank Keith IV, co-owners of the music publicity firm Sweetheart PR. Once a week, we’ll publish a new edition of My Manager, where we’ll share actionable advice on all facets of the music industry.
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Last week in our paid newsletter, we spoke to two lawyers about the issues musicians are currently facing with looming crackdowns on content from livestreams. This week we are being alerted to artists’ official Facebook Pages being taken down due to alleged violations of Facebook’s Community Standards.
If you’re thinking “wait, I thought this wasn’t happening until October 1st” — that is a separate Facebook issue entirely. The October 1st changes apply to any video content uploaded to Facebook with the intent of creating a “listening experience” (e.g. you upload your album cover with a full song stream) — the new algorithms will MUTE that audio automatically, versus the full page takedowns we’re seeing due to cover songs being performed. Two different issues at play; two very different repercussions. This newsletter will discuss the cover song / licensing issue.
Since this is currently a hot-button issue, we decided to push our regularly-scheduled interview to next week and instead share these timely and prescient insights with as many musicians and music industry colleagues as possible. Feel free to share it.
TL;DR: It’s not the performance of the cover song that is the issue, it’s the recording and on-demand feature of archiving the song that requires a license.
We transcribed our interview from last week for easier access to the finer details:
Conversation with Entertainment Lawyer/Band Manager Matt Wilson of Greater Thinking Music Group
FRANK: What's the deal? Why is everybody so confused and freaked out about all this live stream licensing, video on demand, all that.
MATT: Yeah, I mean it's just there aren't appropriate licenses available to make it easy. So folks don't get them. Hopefully, some of the Music Modernization Act components will alleviate some of that but in the past, in order to perform a live stream from a concert, for example, the venue has a performance license from ASCAP, BMI, SESAC, etc.
Then the broadcast is, in theory, covered by that because it's in real-time. There's not a recording going on, it's not available later on for watching on-demand or anything like that. It's just the live performance that has been broadcast. So that should be, in theory, covered by the performance license.
When you do something on Facebook, that's recorded and lives on the site and they give you access to it later, that's technically a recording of a song, so there's potentially a mechanical license at issue. If you're going to be playing a cover, then in theory, again, you're required to get a sync license if, again, that performance is going to be accessible later.
But no one does that stuff, right? So what Facebook does is they flag it and take it down.
I mean that happens a lot. I think that's why a lot of different stuff gets pulled off Facebook, there's a huge, huge gap in the ability to secure the right licenses, so if there was a Harry Fox-type clearinghouse for someone to go in and say “we're going to play this cover.” And it can then be archived on Facebook.
Then you could pay a compulsory license like you would if you're recording a cover song and video and releasing it, then people are more likely to get those licenses and it wouldn't be an issue but because it's such a pain in the ass to go to a publisher in order to secure the license. Again, no one does that, so you run the risk of either infringing and having your content pulled down or, you know like [Great Peacock] decided, just not perform a cover song in the first place.
So that's kind of the gist of the live performance portion of the whole streaming debacle. Currently, there's people that have different theories as to whether or not you can monetize it, whether it's for sale or whether it's just a free stream. But I think any publisher or any rights holder that wants to be a pain in the ass is going to say, well, just by virtue of being on your site is, it’s commercialized — you're promoting the band, you're promoting clicks, you're promoting whatever advertising to the site. So the fact that you don't sell tickets to watch a stream or video on demand is really not relevant to whether or not you need a mechanical or synchronization license.
FRANK: I guess I hadn't really thought about that yet. Is language surrounding this baked into the Music Modernization Act?
MATT: So there's going to be this Music Licensing Collective, which is going to be really great for lots of reasons, but it'll be a compulsory license for digital music providers. So, similar to Harry Fox you can go in and get a compulsory license. So, if we want to do “Cortez the Killer” (a song Great Peacock covered/recorded and perform regularly) and perform it in that context we could go in and get a compulsory license for a blanket license to perform that song.
And then, you don't have to go to the publishers. So it's a much easier, kind of turnkey solution for folks that want to secure digital rights.
There's also going to be a fix to the pre-1972 recordings, which you may or may not know sound recordings pre-72, we're never really protected by US copyright law. So they kind of fell through the cracks. They were protected by state laws. If you wanted to secure a license to a master that was pre-72, it was really subject to state law - so there was just kind of a hole in the copyright code.
And then the third part is there's now the ability of producers to collect royalties. I think there's going to be some sort of database for producers and engineers that worked on masters, called the AMP Act, acknowledging the variety of modern creative content contributors. So, basically, producers and sound engineers can now register with SoundExchange to collect royalties on those performances of masters.
So, long story short, the good part for our purposes is the development of a licensing collective for blanket mechanicals for digital performances so it would include things like podcasts — you know like nobody goes out and gets a license for a podcast. People just play it and hope it slips through the cracks nobody catches them, because it's a pain. No one's in trouble doing it, but now you will have the ability to go out there and secure that license, really easily.
I mean the safest route is to make everything actually live and not any kind of on-demand performance, so it doesn't live on a site.
Typically, a platform will have a performance agreement with the artists that will say, you promise us you own all this material. It's not an issue, but you know if it is a cover song, then it might get flagged by the algorithm or the rights holders might have some sort of robot out there and they catch it and send a takedown notice. There are all kinds of issues that are associated with it. So if I'm a platform, I wouldn't want to just, I wouldn't want to take the risk of recording a cover song because there's a lot of different angles people take on this but I think at the end of the day the licenses are pretty clear and what they are and what they don't cover. It's like when Radiohead covered Prince at Coachella, right? Who has the authority to issue a takedown?
And there are different arguments on this from both sides. So, yeah, you're giving me a weird thing because you're talking about the cover was, in theory, paid for by virtue of Coachella having a performance right license. Then that was broadcast out, but then the broadcast is recorded. So then it does require the publisher's consent, I mean, it really depends on what's happening with the recording so it gets super convoluted.
I think that the position that most people will take is that it is clearly recording, so it clearly requires a mechanical, but to require a sync license? With a mechanical, you just give Harry Fox a flat fee. If you need synchronization, you actually need the signed consent of the publisher, so it's a totally different license.
Anyway, it just gets weird.
You have things like Nugs.net out there, which has all this content, right, but they only play things live. If they do it on-demand, they have to go out and actually get permissions from all the rights holders on the publishing side, and from the band. They went out and signed a blanket deal with Rhino, so they have the rights to all the Grateful Dead music, so they can play all that Dead music whenever they want. Even, you know, video on demand style, so that all the Dead & Co shows and whatnot, they can pay this broadcast because they have a blanket deal with the Grateful Dead.
We attended the MMA panel at Thriving Roots (The Americanafest Online Conference) last week — here’s more on what we learned. We’ll be adding more info from what we learned at the conference in future newsletters.
The Music Modernization Act: An Update
via Erin McNally - Artists Rights Alliance (an alliance of working musicians, performers, and songwriters fighting for a healthy creative economy and fair treatment for all creators in the digital world. The ARA works to defend and protect artists, guided by their Artists’ Bill of Rights, which outlines fundamental principles for today’s music economy)
3 Key Pieces of the Music Modernization Act
The first portion of the law that we're going to discuss is The Classics Act which assures that artists and their rights holders receive a performance royalty for recordings made prior to 1972 for play on digital radio. Many of you may be familiar with the fact that there is no payment to artists for play on terrestrial radio, and it's been that way since the beginning of radio, but at the advent of digital radio in the 90s it was decided that artists would receive a royalty for their plays on digital radio, but due to the fact that sound recordings weren't covered by federal law until February 15, 1972, everything that was cut prior to that federal coverage wasn't receiving payment so the Classic Act update is to include those classic recordings.
The AMP Act, or the allocation for music producers act, establishes that producers and some engineers who made a creative contribution to the master are paid when those songs play on digital radio and then are to be paid directly by SoundExchange by providing a letter directly to the organization.
The third portion of The Music Modernization Act is sort of the densest part of the legislation, and it contemplates both mechanical streaming royalties and performance royalties due to songwriters and publishers. It establishes a blanket license for digital service providers to sort of streamline the process of licensing songs which has been a very complicated process. It also establishes rules around how unclaimed royalties are distributed and how rates will be set for mechanicals moving forward. Lastly, it does make some provisions for the consent decrees that oversee ASCAP and BMI and so it does make some changes to performance royalties as it pertains to that.
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