A riddle: Besides models and clothes, what is present at all fashion week runway shows? Answer: music. Next question: Did you know that the unauthorized use of music owned by another may be copyright infringement?
If a fashion house uses music created by another entity, then the fashion house must obtain permission for each right behind the music, including: (i) to the notes and lyrics; (ii) to the recording of the song; (iii) to public performance, and (iv) to record. To make music a real challenge, all rights often are not owned by the same entity. As music is an integral part of many fashion shows, understanding the legal ramifications of using music during and after a runway show is imperative. Here, we will provide a high-level overview of the different rights behind that perfect soundtrack and how to obtain the proper permissions.
Presenting a new collection may entail showcasing before a live audience, live-streaming the event, posting a video clip of the fashion show via various mediums, and running a video loop of the show in showrooms and retail stores. All such usages require certain copyright clearances to prevent infringement and potential lawsuits. The unauthorized use of music can be quite costly — and bad p.r. — particularly if the soundtrack continuously is replayed.
Every recorded song has two separate copyright components: (i) a copyright in the musical composition (i.e., the written music and lyrics) and (ii) a copyright in the sound recording (often called a master). Typically, the musical composition copyright is maintained by a music publisher and the sound recording copyright is held by the record company, though independent or unsigned musicians may retain such rights personally. For this discussion, we will focus on public performance rights and the synchronization of music in an audiovisual work such as a film or video.
Right to Use in Public
When a fashion house uses music during a show — and live-streams the event on social media — such use is considered a “public performance” and requires the appropriate license from the performance rights organization, or PRO. PROs, such as ASCAP and BMI, are the entities that generally administer the public performance rights of copyright holders in music compositions. Each PRO hosts a particular roster of artists, meaning if your playlist contains multiple artists represented by different PROs, then you need licenses from each one for the event. Most large businesses that use music frequently obtain an annual “blanket” license for the various uses expected during the year. The PROs also provide single event licenses and a “new media” performance license; the latter is required for streaming.
Right to Reproduce
(i) The Synch License. Before an entity may use music in a video, such as for posting on the web and playing in stores, it must obtain a synchronization, or “synch,” license. A synch license is a one-time fee negotiated with the music composition holder. A synch license is not administered by the PROs, which means that a fashion house must get permission from the owner or administrator of rights to the musical composition (e.g., songwriter or publisher). The cost of the synch license likely will vary depending on a number of factors, including how the song will be used in the show; how much of the song is needed (e.g., entire track, 30 seconds); the type of event (commercial or charitable); what platforms the video will be shown, and how popular the song is across radio, streaming and download services.
(ii) The Master Use License. A “master use license” from the record label also is needed if the original sound recording is used. Plan ahead as copyright holders are under no obligation to grant a synch license or master use license and negotiations over terms and restrictions can take days or months and license fees can be unpredictable. Negotiations should start with the music publisher because without such permission, the sound recording cannot be used; once onboard, the publisher may help lobby the record company, or a cover version of the song can be produced, making a master use license unnecessary.
Alternatives to Using Popular Music
There are options beyond popular recorded versions of songs. The brand might hire studio musicians to re-record songs to avoid paying master use fees to the record label, license lesser-known indie content, or find music from services that cater to filmmakers and feature easy licensing processes. A company also can commission original music and negotiate broad synchronization rights. (An up-and-coming performer might accept a modest royalty in exchange for exposure.)
A final option is public-domain content, which is typically music of which the copyrights have expired or any music published before 1923. It should be noted that while Beethoven’s compositions are in the public domain, for example, a specific orchestra’s performance of his work may be protected by copyright. Likewise, works in the public domain in the U.S. still may be protected by copyright overseas.
Putting it All Together
To summarize — to ensure proper clearance of third-party music for use in a fashion show and subsequent reproduction and recording thereof, a company would secure the following rights:
• Fashion show: Playing music at the show would constitute a public performance requiring the appropriate licenses from the various PROs or musical composition copyright holder.
• Live-streaming: If the show is streamed live on digital media, the brand will not need a synch license. But it would require a new media public performance license from the PROs.
• Reproducing the video: To post a video of the show on the company’s web site, YouTube and similar platforms, and to replay it in stores and showrooms, the company needs a synch license, and a master use license from the record label if the sound recording is used. The license will allow the brand to publicly perform the musical composition in the show and in specific digital media, unless the licensor already has licensed public performance rights to a PRO, in which case, a separate license from the PRO is required.
Compiling the perfect fashion show soundtrack requires more than a creative eye and ear. For a grand finale, one free of legal trouble, make sure you have your music licenses in place.
Monica B. Richman is a partner in the New York office at Dentons. She has created a leading practice as intellectual property counsel to clients who include many of the world’s biggest names in entertainment and fashion. Her specialties include licensing, commercial contracts, and intellectual property development, protection and management. Francesca Montalvo Witzburg is an associate with Dentons specializing in the fashion and entertainment industries.
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