Boom in Live Streams Brings Questions About Proper Licensing & Payment of Songwriters (Guest Column)

David Israelite
Courtesy of NMPA

David Israelite

As Americans adjust to the new normal and live entertainment options decrease, one platform is booming: the live stream. While live streams have always been popular, Quarantine has brought out more creativity than ever when it comes to what viewers can expect from their own homes.

In some ways, this has been a great moment of expansion for new platforms in the industry. Studies recently released by Nielsen have showed that consumers are expanding their interests into new genres and have an appetite for subscriptions that hopefully will endure after the COVID-19 crisis subsides. However, while this boom has helped buoy spirits and online engagement, it is critical that platforms are properly licensed in this burgeoning space.

Right now, while the vast majority of songwriters, musicians and artists aren't receiving their typical income, it is even more critical that live streaming platforms know what types of licenses they need and ensure music creators and copyright owners are being paid properly.

How songwriters specifically are paid depends heavily on how a broadcast is transmitted and whether it is saved. While there are many licensing implications depending on how entertainment is transmitted – whether live, on demand, rebroadcast, etc. -- it is most critical to determine the life of the stream.

As most in the entertainment industry know, if a concert or event using music is broadcast live and has no “life" after the live stream -- meaning it is not recorded, archived, or repurposed -- what is needed is a performance license. Since this type of activity has recently proliferated, it is more important than ever that Performing Rights Organizations (PROs) like ASCAP, BMI, SESAC and GMR be vigilant about these broadcasts and ensure songwriters are receiving the royalties they deserve and that pre-negotiated deals are in place to cover these types of events.

Where a live stream is recorded, a platform also needs a “sync" license. This license is reserved for when video is paired, or synchronized, with music and saved to play again and again. This is a very common practice for live streams, and it is crucial that platforms like Facebook Live, Twitch, Zoom, YouTube and more have licenses in place for this type of recorded activity. Particularly considering that live streaming -- once a smaller segment of the music streaming industry -- has now come to dominate the landscape to the tune of millions of viewers.

New outlets for this type of entertainment continue to emerge. Recently a massive spike in concerts being performed on virtual gaming platforms like Fortnite and Minecraft have started a revolution in how viewers engage in a concert as festivals and live shows are cancelled or postponed. Gaming platforms are an exciting next step and, naturally, users have been quick to jump into this immersive viewing experience.

The licensing stakes are high. More than 12 million live viewers watched Travis Scott's recent 'Astronomical' concert on Fortnite, drawing 27.7 million unique participants who showed up a total of 45.8 million times during the three-day series of shows. Those fans showed up a total of 45.8 million times during the three-day series of shows. Additional views were logged on other platforms like Twitch and YouTube. The scale compared to even large stadium concerts is massive. If live streaming is temporarily going to replace the $12 billion dollar touring industry, then a great deal of revenue will be lost to music creators if these platforms fail to license properly. And we have only scratched the surface of where these virtual concert platforms can and will go.

This is critical during the public health crisis particularly since synch licenses are one of the few areas where songwriters get a fair shake when it comes to negotiating the value of their work. Performance rights are heavily regulated due to the fact that the largest PROs -- ASCAP and BMI -- are constrained by U.S. Department of Justice regulations from the 1940s. Likewise, the mechanical licensing space is constrained by copyright law dating back to 1909. Only in the synch market do songwriters have the ability to say no, as recording artists can, and be paid relatively fairly.

In a time when live streaming content is flourishing, songwriters deserve to see the revenue generated from these broadcasts. Today's live streamed events are the new meeting, concert and entertainment venues, and tickets, platform memberships and subscriptions are being bought and sold based on the crucial role music plays in the experience, if it is not the sole draw. While the traditional mediums of AM/FM and satellite radio are suffering due to decreased driving and social gatherings, live streams show great promise to bridge this gap, but only if licensed properly.

Technology has been a great comfort and means of connectivity during this difficult time. We're relying on live streams to give us some semblance of normalcy as we chart the months ahead, and paying songwriters for their contributions to these broadcast events must become the norm as well.

David Israelite is the president & CEO of the National Music Publishers' Association. The NMPA is the trade association representing American music publishers and their songwriting partners.

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