With the rise of social distancing and stay-at-home orders, the demand for online content has increased exponentially. Given this new reality, online content creators must take steps to ensure that their online creations don't land them in legal hot water. One of the most prevalent cross-industry issues is music licensing. Music is everywhere in online content and often plays an integral part in the overall experience. From video game players streaming music as they show off their skills on the largest video platforms to fitness instructors using popular music to pump up their workout classes, individuals and companies must ensure that they don't run afoul of the copyright laws when they incorporate music into their online content.
Copyright owners are granted an exclusive bundle of rights in relation to their copyrighted works, including the exclusive rights to reproduce, perform publicly, and distribute their copyrighted works.1 The copyright in music is broken down into two separate rights—one for the music's composition (i.e., music and lyrics) and one for the actual sound recording (i.e., a fixed performance). Because of these dual rights, using copyrighted music may require two different licenses.
Whenever you release a video with a song that someone else wrote and composed, you need a synchronization (sync) license. For example, if you release a video of your band playing an Incubus song, you need a sync license to use the music and lyrics of that song, even if it's a small portion of the song. You do not, however, need a sync license for songs that you wrote and composed yourself or songs in the public domain, so you're free to use the song "Danny Boy" in your next YouTube video. But if you use a copyrighted sound recording in your video, you will need a sync license for the composition and a master use license for the original recording. Again, this applies even if you're using a small portion of the original sound recording. Master use licenses are negotiated with a song's owner—typically, a record label or the recording artist. Sync licenses and master use licenses are separate and distinct from public performance and personal entertainment licenses, which are not covered in this article. For a broader look at music licensing, please read this companion article. The following examples and best practices illustrate and address the challenges associated with using music in online content.
Video game players who livestream or record their gameplay often include music with that content. Go to any livestreaming or online video platform—Twitch or YouTube, for example—and you will find gamers streaming music while playing the most popular video games. Gamers often use popular music-streaming subscription services to do this, but those services are intended for personal entertainment, not broadcasting. Streaming platforms allow gamers to record and upload those livestreams as on-demand videos (VODs). But the platforms will mute those VODs for unauthorized use of copyrighted audio. This is known as "VOD muting" and protects the online platforms, not streamers. Even if a VOD does not include third-party music, it could be muted for in-game music. Without the right licenses, syncing copyrighted music with live or on-demand video content may lead to liability for copyright infringement. Gamers, however, are not the only ones struggling with how to incorporate music into their production without violating copyright laws.
Gym closures have led personal fitness trainers, yoga instructors, and group exercise leaders to move their content from their studios to YouTube and other streaming sites. But even these individual instructors must ensure that they have the proper licenses to use music to pump up their online workouts. Instructors have found creative ways to avoid the costs associated with obtaining sync and master use licenses. For example, some instructors provide a suggested playlist from a streaming service beforehand that class members can access on their own or use public domain versions of songs that sound relatively similar to the popular songs they wish to use. Others simply opt not to use music at all in their videos. Larger fitness companies that have procured the proper licenses for their in-studio use of songs still must ensure that their instructors, teaching from their living rooms, have licenses as well.
Peloton, a fitness company known for its stationary exercise bikes and treadmills that stream live and VOD classes led by instructors, was sued for allegedly using thousands of unlicensed songs in its popular workout videos. Nine music publishers, all members of the National Music Publishers' Association (NMPA), filed a lawsuit in March 2019 alleging that Peloton used more than 1,000 unlicensed songs in its workout videos and seeking more than $150 million in damages.2 The plaintiffs later amended their complaint to add 1,000 more musical works and increased their damages demand to $300 million.
The complaint alleged that Peloton knowingly and willfully infringed the plaintiffs' copyrights because Peloton failed to obtain the proper sync licenses for several songs featured in Peloton's online classes. The complaint had an immediate impact on the platform, as shortly after the lawsuit was filed, Peloton removed the offending songs. Peloton's response sparked a separate class action litigation brought by several Peloton customers alleging that the removal of the infringing music caused 5,739 classes to be taken off the platform in their entirety, which significantly reduced the size of the on-demand library available to users and the quality of the platform in general.
On February 27, 2020, Peloton and the NMPA together announced that they have fully settled the litigation. Although the financial terms of the settlement were not disclosed, Peloton and the NMPA entered into a "joint collaboration and will work together to further optimize Peloton's music-licensing systems and processes."
Best Practices and Educational Resources
Streaming platforms are finding ways to educate content creators in these industries and others to discourage copyright infringement. YouTube, for example, has developed educational content dedicated to assisting content creators with the legal use of music on their website. Its Creator Academy includes instructions related to music copyright and constructive solutions to finding ways to include music in that content. YouTube also polices the use of copyrighted music with a "strike" program—after YouTube's reviewers deem one complaint valid, the creator of the alleged infringing content must enroll in its "Copyright School," a five-minute video explaining YouTube's policies, with a quiz to confirm understanding. After three strikes, YouTube will remove the account.
Content creators who cannot obtain the proper licenses to use the most popular music have another option. Several online platforms offer stream-safe, royalty-free music specifically for livestreamers like gamers and fitness instructors. For example, PretzelAux (Pretzel) has curated a library of new music that allows streamers to avoid VOD muting and copyright claims. Artists who upload their music to Pretzel have agreed to permit users to play their music in streaming content. Pretzel offers both a free and a paid subscription.
Although the current public health crisis has certainly led to more online content, these music streaming challenges already existed. Content creators must ensure that they have the appropriate licenses for music in their videos, while video streaming platforms must assist in policing the content they support. For more information on music licensing issues, we encourage you to reach out to the authors of this article or any other member of the Venable Intellectual Property Group.
 17 U.S.C. § 106.
 Note that the litigation only encompassed the musical composition rights at issue in the workout videos and did not involve the owners of the sound recording rights.