A lot of questions have arisen out of the new rules kicking in for music content publishers on Facebook. There has been lots of buzz about “new rules” reportedly kicking in on October 1st. While I am convinced that this is mostly bad news for online DJs, I suspect people who perform/livestream cover tunes are fairly safe.
To understand this whole thing, we need to understand a little of the basics of how artists/composers get paid for their music. And for that, we have to peel back a page to a little corner in our legal system: copyright law.
More specifically, music publishing and distribution. Let’s use an example of one of my favorite Yacht Rocker’s, Michael McDonald.
Michael wrote “I Keep Forgettin” and released it on his debut solo album in 1982. Michael wrote it and owns the music copyright (aka “Publishing Rights”) on it (there are co-writers who also have co-credits). Mike wants to sell lots of copies of his new record but has no technical expertise to even produce an album, let alone design packaging, print thousands of copies and get them distributed around the world…and also tour and do radio and television appearances and interviews. So he partners with a record company…in this case he chose Warner Bros. as his record “label”.
In that agreement, the one between Mike and WB, Mike retained his Publishing Rights of the song lyrics and the music notes, but Warner Bros. now owns some limited rights to sell and relicense that particular recording of that particular song. And for that, they paid Mike, and also paid for all the other marketing/distribution/touring things. They sell copies of this recording, historically on vinyl or CDs, more recently through streaming services like Spotify or Pandora. They also give free copies to radio stations in hopes that they’ll play it on the air, generating more interest in purchasing the album or buying tickets to a show.
In the olden days, if you were to hear “Keep Forgettin’” on the radio, the radio station keeps a log of all music it plays and also reports the size of its audience. Based on this, Mike gets paid through one of the “Publishing Rights Organizations” (PRO), usually ASCAP, BMI or SESAC. They collect the money on behalf of songwriters and make sure Mike gets his fair cut.
If you heard Mike’s raspy yet somehow beautiful voice on a juke box or over piped-in music, the bar or pool hall or restaurant/coffeehouse pays the PROs based on the capacity of their venue.
If you heard it in a movie or a television show, you’d be damn certain both Mike and WB got paid. Film and television producers have whole departments dedicated to getting all kinds of copyright clearances. If there is a brand, logo, clip, image, sound effect, music lyric, or song, you can bet it is heavily vetted prior to release to make sure they have paid for the proper mechanical or sync licenses, plus the publishing license. But if you’re not hearing the WB version of the song (let’s say it’s an acoustic version played by an unknown musician), WB doesn’t get paid. But Mike still does because he still owns the publishing rights to his work.
If you wanted to take a sample from the WB recording, as Warren G most famously did when he released “Regulate” in 1994, (Regulate, incidentally released on the Death Row Label…also owned by WB), you can bet one part of WB paid the other part :).
But, what happens if you’re a guitar player or a piano player who plays songs like “Brown-Eyed Girl” “Sweet Caroline” or really sweet mashup of “Regulate” and “Keep Forgettin”?
Historically this “performance fee” of copyrighted music is covered by the venue/bar/restaurant under a blanket performance license. ASCAP/BMI have regional scouts that do nothing else but go into venues and listen for live music being performed. If they hear it, they’ll approach the owners to bring them into compliance or face heavy fines and lawsuits. Most places comply rather quickly. Those that don’t or can’t just stop offering live music. If they are playing Spotify or Pandora, you can bet they are paying for the “Business” versions of those streaming services.
Enter 2020 and livestreaming becomes THE thing. No one is going to bars/clubs/restaurants so DJ’s and live musicians take to Facebook, Youtube, Twitch and other streaming platforms to entertain and possibly make some income collecting tips digitally.
Twitch is owned by Amazon. YouTube is owned by Google. And Facebook owns Facebook Live and Instagram. These sites are where the vast majority of livestreams are happening. DJs are streaming multi-hour-long dance sets, piano players are streaming all-request piano shows and tons of people are hosting mini streaming concerts for their family and friends…and possibly picking up some new fans along the way.
Superstars are doing it and solo artists are doing it. People with thousands of fans and people with dozens. So what is changing?
Well here is what everyone’s talking about right now: Facebook/Instagram Music guidelines that are widely rumored to be going into effect on October 1st 2020 .
Music Guidelines These supplemental terms apply if you post or share any videos or other content containing music on any Facebook Products. You are responsible for the content you post People use our Products to share content with their family and friends. Keep in mind you remain solely responsible for the content that you post, including any music that features in that content. Nothing in these terms constitutes any authorization by us with respect to any use of music on any of our Products. Use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licenses. You may not use videos on our Products to create a music listening experience We want you to be able to enjoy videos posted by family and friends. However, if you use videos on our Products to create a music listening experience for yourself or for others, your videos will be blocked and your page, profile or group may be deleted. This includes Live. Unauthorized content may be removed If you post content that contains music owned by someone else, your content may be blocked, or may be reviewed by the applicable rights owner and removed if your use of that music is not properly authorized. You may not be able to post or access videos containing music in every country of the world We want you to be able to share videos with your family and friends wherever they are, but any music in your video, if it is allowed at all, may not be available in all countries of the world.
This news has reasonably freaked out quite a few livestreamers. How this got tied to October 1st is a little sketchy. These music guidelines have already been in place.
The confusion seems to stem from a Facebook Terms of Service update that IS becoming effective on October 1st, but that update only affects one section (3.2) and is not specifically about music and livestreams. The NEW Facebook TOS can be previewed here: Facebook Oct 1st TOS Updated Terms.
We can remove or restrict access to content that is in violation of these provisions.
New (additional) Language:
We also can remove or restrict access to your content, services or information if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook.
That’s it. No other changes.
Furthermore, here’s what Facebook posted originally back in May, but updated on September 11th 2020:
Our partnerships with rights holders have brought people together around music on our platforms. As part of our licensing agreements, there are limitations around the amount of recorded music that can be included in Live broadcasts or videos. While the specifics of our licensing agreements are confidential, today we’re sharing some general guidelines to help you plan your videos better: Music in stories and traditional live music performances (e.g., filming an artist or band performing live) are permitted. The greater the number of full-length recorded tracks in a video, the more likely it may be limited (more below on what we mean by “limited”). Shorter clips of music are recommended. There should always be a visual component to your video; recorded audio should not be the primary purpose of the video.
That Full Blog Post is here: https://www.facebook.com/facebookmedia/blog/updates-and-guidelines-for-including-music-in-video
To me, this means that Facebook is covering the fees for the PROs and has blanket agreements to make sure that if you play a really SMOOTH cover of “Keep Forgettin'”, Michael McDonald is gonna get his piece of the action. I wouldn’t worry…at least not anytime soon.
BUT, if you’re spinning Yacht Rock tunes and you are playing MOSTLY Michael McDonald’s records…WB wants their cut. And WB don’t play. And hence Facebook’s new language covering their ass if you livestream copyrighted songs as a “listening experience” the listening bots are going to sniff you out and shut your stream down.
Anyone who has ever tried to do a lip sync to Mr. Roboto livestreaming knows…they shut that down pretty fast. Those bots are good.
So hopefully this will ease the mind of my fellow livestream performers. It’s not the end of livestreaming. It’s just another day. Keep streaming alive! (And Smooth)