Live performances online, like those at traditional clubs, need public performance licenses from collecting societies like ASCAP and BMI, which platforms like YouTube and Twitch have. Making those same performances available on demand on a continual basis also requires mechanical licenses from publishers — as well as synch licenses if video is involved. (DJs also have to get similar rights to recordings.)
Mechanical licenses vary in cost: "A couple hundred bucks to a couple thousand bucks, depending on the nature of their use," says Barry Slotnick, a Loeb & Loeb attorney who represents artists, songwriters, labels and publishers. But they require the performer to track down the publisher, which isn't always easy.
The law isn't always entirely clear, either. Some rights holders believe that all livestream performances involve making a copy, and thus require mechanical rights, or synch rights in the case of video. "It's like the Wild West out there, and some of this is evolving," adds Ben McLane, a music attorney who has represented numerous artists and labels. "You don't always know which of these licenses are applicable or necessary."
Some of the big platforms, including YouTube and Facebook (which owns Instagram), have the necessary licenses with almost all publishers, so artists don't have to worry about what songs they perform. Other platforms don't. "You've got companies like YouTube and Facebook checking all the boxes, and there are some that say, 'What boxes?' " says a label source. Twitch, which focuses on livestreaming, although not only with music, said in a statement that it "requires users to stream content they have the necessary rights to stream — for example, music they've written or licensed." If that's not the case, rights holders can issue takedown notices under the Digital Millennium Copyright Act.
The complexity of the issues can be intimidating. If an online live performance requires a public performance license, and an on-demand stream involves both a public performance license and a mechanical license, what licenses do time-delayed live performances require? "It can be a thicket," says Eleanor Lackman, who handles music litigation for Mitchell Silberberg & Knupp. "There's probably a lot of infringement going on. We've had this flood of use with the stay-at-home orders, and there has to be a lot out there that isn't licensed."
So far, there haven't been many legal threats — because livestreaming isn't yet a big business and labels and publishers don't want to interfere with their artists trying to make money during a crisis. A representative for a well-known singer who recently performed a livestream says the team didn't bother to clear rights. "We just did it and no one has come after us," says the representative. "No one has contacted us about clearing anything, either."
Clearing rights can be even more complicated when DJs incorporate snippets of existing recordings into performances. For a recent livestream, Diplo played parts of recordings like Marvin Gaye's "Got To Give It Up," in addition to his own compositions. Since those performances are available on demand, his team has to clear the relevant rights with both publishers (of the compositions) and labels (which own most recordings). In this case, Diplo's manager, Andrew McInnes of TMWRK, managed to pull it off. "The big companies have been helpful and supportive of what we've been doing," says McInnes. "Pre-coronavirus, it was complicated to do things like this, but everyone's working together to keep some positive music experience out in the world right now."
Publishers say they're doing their best to streamline their licensing processes during the anxious period of no concert revenue. "We're trying to clear as quickly as possible and be as accommodating as possible because of the status of the world," says Kelly Baden, vp worldwide licensing operations at Concord, which administers the publishing for the Rodgers & Hammerstein Organization and Leonard Bernstein's catalog. "We have definitely had discussions about, 'How do we take this out of our normal process and expedite this?' "
As livestreaming grows, however, rights holders will probably balance this kind of goodwill with their desire to get a piece of a promising new business. "If I'm Beyoncé and I say, 'Everybody show up,' and we're going to see her and Jay-Z and the kids playing in their living room, if I were a [label or publishing] executive, would I call them and say, 'I know you had to cancel your tour, and I know that's a loss of income for you, but I want a piece of this'? That's a tough call," says a publishing source. "I'm guessing the executives would say, 'Wait a second, this could be the future.'"
This article originally appeared in the April 25, 2020 issue of Billboard.