Are You Legally Allowed to Use That Song (or Other Content) in Your Digital Event?

An intellectual property litigator breaks down licensing rules.

Music, photographs, text, presentations, graphics and videos are vital content for any meeting — particularly as meetings move online. But they are also protected by copyright, and using them without the copyright owner's permission constitutes infringement. Organizations must ensure that the content used, displayed and distributed in their meetings is original or appropriately cleared. 

The practical reality in today's all-online environment is that the likelihood that any copyright infringement will be discovered is much higher — making it more important than ever to ensure that the materials are original or that all permissions have been obtained. For example, many photographers have increased their enforcement in recent years, searching online manually or using reverse-image software to find infringing uses.

Use of music is especially nuanced. Public-performance licenses have always been required to play music to an audience outside of a small private group of friends or family. At a conference held in a typical conference center, the venue or the organizer would obtain these public-performance licenses through performing rights organizations (PROs). With a virtual meeting, the platform is the new venue and public-performance licenses are still required if music is played during the event. Unlike a typical conference center, many virtual meeting platforms do not have licenses with PROs. Even for the meeting organizer who has a license with a PRO in place from the in-person meeting times, that license likely was limited to physical venues and will need to be revised to cover digital performances. 

Meaghan Kent
Meaghan Kent

If the virtual meeting will be recorded, and music is included, additional licenses are needed for use of that music. This includes a synchronization (sync) license, typically from the music publisher for use of the musical composition, and a master-use license, typically from the record label or artist for use of a specific pre-recorded version of a song. Typically, these licenses are negotiated on an individual song basis; if you are seeking rights from the major music industry players, you should expect it will take quite a bit of both time and money, and you will need to give them the necessary lead time and to budget accordingly.

There are several alternative options for incorporating music into a virtual-conference agenda:

  • There are companies that license music that has been pre-cleared for common media uses, and they can serve as a one-stop shop.
  • Some musicians license their songs through Creative Commons, with certain restrictions or credit requirements.
  • Some songs have fallen into the public domain (typically older songs).
  • Commissioning original written music can be feasible, with advance planning.

Use of copyrighted materials without the appropriate license is costly. Even without any knowledge of infringement, an organization can be found liable because copyright infringement is a strict liability offense. In other words, acting in good faith — believing that your organization had a license when it did not — may decrease the damages but it will not avoid liability. 

Further, the exposure is higher than many realize: In addition to an injunction, if the work was registered with the copyright office statutory damages are available. Such damages can be as high as $30,000 per work infringed and can increase to $150,000 per work if found to be willful. Whether or not the work was registered, actual damages are always possible to seek, and they include the actual harm to the copyright owner or the unlawful profits attributable to the infringement. 

For a virtual meeting, a "shutdown" as a result of infringement can happen quickly. Under the Copyright Act, a copyright owner can send a take-down notice to the internet service provider, such as the platform or host, resulting in your virtual meeting or sessions being made inaccessible in a matter of days or even hours — depending on the speed with which the ISP acts. 

Reducing risk of liability requires careful use and clearance. Organizers should ensure their staff understands the importance of creating original content and clearing third-party content, and should consider compliance trainings.

Presenters and speakers are often the source of a large volume of the content, and so speaker agreements are vital. For example, speakers should warrant that their materials are original or properly licensed and agree to defend and indemnify potential copyright infringement claims related to their materials. The agreement should also articulate the license the speaker grants the meeting organizer to their content. In the current environment, use should extend to the digital world, including potentially live-streaming, recording and electronic access. 

Similarly, meeting organizers must take the time to understand their options for different platforms and services, reviewing the platform agreements and terms of service. Important considerations include whether the meeting will be live-streamed, recorded or both, and the respective repercussions; how and to whom any recordings will be available; whether and how access can be limited to registrants; and the extent to which the platform has licenses in place, such as with performing rights organizations. 

The bottom line is that content is crucial — but also dangerous if not properly cleared. 

Meaghan Kent, a partner with law firm Venable LLP, is an experienced intellectual property litigator and an efficient and practical counselor, advising clients on copyrights, trademarks, patents, right of publicity, domain names and other online disputes.