In a world where a live event can be as simple as a few people meeting via videoconference, how do the rules of music licensing apply? According to one legal expert, it’s a question of liability and risk, just as with in-person events.
Music played at in-person events can add the right vibe and a unique kind of energy. It can have a similar effect for virtual events too. But event planners might be wondering: Does the difference in venue matter when it comes to music licensing?
For the most part, it doesn’t, says Peter Strand, a lawyer with Mandell Menkes LLC who specializes in intellectual property issues in the music industry. In a virtual setting, “if there’s music being played, that is still copyright protected, and the performance has to be authorized,” he says.
Strand, himself a musician (his ’70s band Yipes! once opened for Foreigner and Cheap Trick), notes that this is also true of event recordings, even if they will not be available in perpetuity. “Again, the fact that these are virtual, and that the recording may not be permanent … doesn’t change that,” he says.
Plenty of virtual events—some in venues as small as living rooms, others at a massive scale—have used music in a high-profile way. Strand says that the two primary groups for performance rights, ASCAP and BMI, realistically don’t have the resources to track down every performance, nor do groups representing songwriters.
But failing to get a license for the music you use carries potential for liability, especially if the event is high-profile. Strand cites the hypothetical example of a well-known musician doing a musical livestream. “If an artist with some notoriety says, ‘I’m gonna do a Dylan program on Friday live from my living room, that may trigger somebody to contact that performer to say, ‘You need to get that license,’” he says.
The poster child for what can happen if you fail to license music for digital use is the exercise bike company Peloton. In 2019, the company was sued by numerous music publishers over unlicensed songs featured in Peloton videos.
Eventually, the company ended up striking a settlement with the National Music Publishers’ Association, whose members filed the lawsuit. According to The Hollywood Reporter, Peloton paid $49.3 million in settlement and litigation costs.
“I think that the media coverage of that matter probably was instructive to other organizations,” Strand says.
Consider the Source
One thing that has changed about music licensing thanks to the internet is how easy it is to find songs and use them without thinking about copyright—which can lead to trouble.
Strand cites the real-life example of a company that attempted to license a vintage pop song for a commercial, only to learn after using the song that the recording was not owned by the record company it was trying to license from. It turned out to be a cover version that an employee found on the internet.
In an era when Spotify and even illegal torrent sites can put a song at your fingertips, the ease of sourcing music can create headaches, especially as the rules for permissible use are often unclear.
“People do have a little bit of a casual relationship with stuff found on the internet, even if in the back of their head, they know something about Napster,” Strand says, referring to the now-defunct peer-to-peer file-sharing service that got into legal hot water over copyright infringement.
For event planners to avoid such risks, Strand recommends dedicating staff to content discovery and working with a lawyer to help manage decision making around licensing for an event.
“If you’re going to assign people to select content that you want to have as part of your event, find out the source of what they handled; make sure that you know it, if you can identify the owners; and make sure that you can contact somebody to get it licensed,” he says.