While celebrities, musicians, and other artists have been streaming content for fans on virtual platforms during the widespread shutdown due to the COVID-19 pandemic, the use of popular songs is often used without licenses or permission. This was an issue even before the pandemic forced all public performances online with streaming and social platforms, making it necessary for a more simplified, streamlined licensing process than traditional publishing companies had been using.
Streaming turns everything that gets put online into a performance, broadcast, or display of intellectual property, and existing copyright laws mandates that creators of this content are protected from unlicensed broadcasts. Also, the pandemic has caused a surge in consumers using streaming services from Tik Tok to Zoom and YouTube.
So what happens when a celebrity posts a video with an unlicensed song in the background, and it goes viral? Well, typically, nothing, which creates the necessity for greater protections for creators and owners of intellectual property. But it’s a complicated law to enforce as the digital transformation evolves.
With “live” performances being redefined with shutdown restrictions, it can be challenging to navigate licensing. Creating licenses for events that are Internet Broadcasts brings to light several tricky questions. Where is the broadcast going to be received? What is the compensation structure? How do broadcaster and producers handle re-cast content? How do you calculate licensing fees (number of streams, views, single event)? Are licenses exclusive or non-exclusive?
Music that is synched to video requires different licensing agreements than internet radio or traditional broadcasts. Instead of just paying a performing rights organization like ASCAP or BMI, producers now have to find copyright owners and negotiate licenses. This process can be frustrating and time-consuming.
As the coronavirus pandemic closes its third month, some copyright owners are concerned about the causal broadcast of their material. The National Music Publishers Association said in April it planned to sue Tik Tok over copyright infringement. These battles remind one of the early days of streaming and piracy with platforms like Napster allowing illegal downloads and causing years of litigation and millions of dollars in lawsuits to find a resolution.
COVID-19 presents platforms and copyright holders alike a new opportunity to pivot their practices to start adapting to the new normal, but it will take unique thinking and cooperation. Rather than trying to fix the system, media companies will need to harness the power of technology and the law to create a system that serves audiences, protects copyright holders, and provides rules for distributors and licensors.