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Royalty-Free Music vs. Copyright-Free Music

| Doug Walker | March 3, 2022


Creators who hope to add zest to their productions naturally want to include music. Music boosts audience engagement and adds emotion and excitement while improving pace.

If creators can make their own music and perform it, that makes life a lot easier. But not all creators are also musical creators, no matter how brilliant they are. The majority need to draw on music written and performed by others.

That means dealing with rights issues. Most music is copyrighted, and using copyrighted music brings a host of costs and complications.

It’s crucial that producers understand the various issues involved before they plunge in and fall in love with tracks that may be off-limits to them. Let’s start at the beginning.

What Is Copyright?

Copyright law is a legal system that protects the rights of creators. Copyright owners have the right to make copies of a particular piece of music or intellectual property (IP). That means that anyone else wishing to use copyrighted music has to come to a licensing agreement with the owner.

Copyright law goes back to 1790 in America and initially dealt with books, charts, and maps. But copyright law has evolved since then to include other art forms, including music, of course, which was included in 1831. The legal structure is constantly adapting to address the needs of both owners of intellectual property and the artists who want to use it in their own works. Creators who want to use copyrighted material must get permission from the owner, acknowledge them, and pay an agreed-upon fee, as well as royalties. The rights to most songs by famous bands are too expensive for the average independent media producer or creator to buy. Using music in an unauthorized fashion has led to bitter lawsuits and costly settlements.

What Are Royalties?

Royalties are periodic payments by licensees to owners of IP, depending on use. In essence, licensees pay a share of their profits to the original creators, recognizing the ongoing contribution of the licensed IP.

For example, when Sirius XM plays a song on the radio, they must pay royalties based on how many times that song is streamed. Royalties are collected by Performance Rights Organizations (PROs), the most famous of which is ASCAP. Royalties are calculated according to several factors, including venue size if the music is used in a live performance situation or the number of recorded units sold.

Royalties are also paid when rights-managed music is used in TV commercials and other commercial forums that may not be immediately obvious — like telephone hold music.

In short, if a piece of music is copyrighted, users generally have to pay royalties for the right to use it. If it’s in an ad, royalties will likely have to be paid based on how long the ad airs and in which territories.

“Rights-managed music” refers to copyrighted music whose rights are enforced in this typical way — via the payment of an upfront fee and ongoing royalties.

Can I Use Short Excerpts of Copyrighted Music?

Under the Fair Use doctrine, short excerpts of a copyrighted work, including music, can be used for purposes like commentary on the original, criticism, parody, research, or a news article. There are also protections for certain forms of educational use.

There are no defined rules laying out specific percentages or lengths of a work that can be used, but the question of what constitutes fair use comes down to four factors: the purpose of the use, the nature of the work, how much of the work is used, and potential market harm. This has been a major issue for hip-hop creators and musicians wishing to sample from others’ work. Many musicians have been sued, and the courts have struggled to decide whether a sample-based song transformed its sample or parodied it. Biz Markie was famously sued over his track “Just A Friend,” which sampled a piano loop by Freddie Scott. The result was a harsh court verdict limiting the song’s future play and sales and handing down a $250,000 fine. Biz Markie’s next album was called All Samples Cleared!

It can be permissible to use a brief clip of a song in the context of an academic piece on musicians, but it might not matter how long the clip is when it comes to a commercial endeavor in which the sampler profited.

For creators attempting to use musical tracks for an ad or YouTube video, the use of copyrighted music without permission should be avoided. Otherwise, creators risk penalties, fines, and legal action, even when they only use a short excerpt.

What Kinds of Licenses Exist for Rights-Managed Music?

The kind of license required depends on the use of the track. Some of the possible licenses involved include:

  • Needle-drop licenses require a payment every time a song is played, or part of it is sampled. That is, every time the needle drops, for those who remember playing music on vinyl.
  • Sync licenses are required for any music synchronized to audiovisual material as part of a soundtrack.
  • Mechanical licenses permit the licensee to reproduce and distribute copyrighted musical compositions in audio format, whether it’s a digital download, for streaming, or hard copy like vinyl or CD. This license is also used when a musician wants to cover another artist’s song. Royalties for mechanical licenses are mostly collected by the Harry Fox Agency.

The use of a rights-managed work requires one license for the use of the performance of the recording, typically owned by a record label, and one for the underlying composition, usually in the hands of the publisher or songwriter. For many years, the Beatles refused the use of the original versions of their songs in soundtracks, leading to many cover versions being employed by producers.

Performance royalties must also be paid for live-cover versions, but the focus here is primarily on music for video and audio creators. It’s quite a lot to handle in terms of money, complexity, and time. It stands to reason that many creators choose to look for music that isn’t limited by copyright law.

What Is Copyright-Free Music?

Non-copyrighted music is said to fall in the “public domain.” That means that anyone can use it, with no strings attached, and that there is no ownership of that musical property.

Copyright-free music can achieve this status in four ways. Copyright does not apply when:

1. The Copyright Has Expired

Copyright generally lasts seventy-five years. Additionally, pre-1926, copyright law as currently recognized didn’t really exist in the US. That means that new songs come into the public domain every year as their copyrights lapse and that older classical compositions, including a good deal of jazz and Dixieland, are copyright-free.

2. The Copyright Owner Has Failed To Follow Copyright Renewal Rules, So Copyright Has Lapsed

Under prior US copyright law, copyright had to be renewed if works were published before 1964. Some popular songs surprisingly fell into the public domain because their copyright owners didn’t correctly follow renewal rules. Sometimes this is the result of corporate takeovers and mergers, in which titles get lost in the shuffle.

Corporations are increasingly attuned to the money that can be made in music libraries, but this wasn’t always the case.

Additionally, authors or the heirs to a song’s copyright can elect to terminate their rights to stop the song’s copyright from being bought, sold, renewed, etc.

3. The Copyright Owner Deliberately “Dedicates” Works to the Public Domain

Some music is deliberately placed in the public domain because its creators dislike the entire copyright system. However, these cases are few and far between because most people want to be fairly compensated for their creations. Royalties are a significant source of income for many artists and composers, not to mention record labels. Also, there have been cases where a musical composer seems to have let go of their rights — but insists on them in the future, in which case a secondary or derivative creator could find themselves being challenged over their right to use the track.

As a general guide to whether or not music is in the public domain or is copyrighted, ask whether a work:

  • Was released before January 1, 1924
  • Was released between 1923-1964 and was not renewed during the 28th year of its copyright
  • Came out without copyright notice under the authorization of a copyright owner

These qualifications generally indicate a piece that is in the public domain.

Issues With Public Domain Music

One major issue with music that’s said to be public domain online is that sometimes it’s not actually public domain. The misunderstanding is often the result of honest mistakes or mislabelling or because of a misunderstanding about a split-rights situation, as in a conflict between mechanical licenses vs. performance licenses.

Aside from whether a piece of music actually is in the public domain, many public domain works are not appropriate for use. Many copyright-free works are naturally older. That often means the quality of recordings may not be up to scratch. It can also mean the music itself may not be in a genre that works for a contemporary production — Dixieland is great but may not work for a tech company’s presentation.

Different countries also often have different copyright laws. If you hope to use a work in an internationally distributed creation, that can be a problem.

All of the previous information refers to US copyright law, but now that almost every project is destined for the web, a creator may find they have to take work down because it violates European copyright law, for example.

When it comes to music, as mentioned above, rights can be separated between mechanical rights (the right to make copies of a particular composition) and performance rights (the rights of the singer or artist performing the song) Even if a classic operatic aria was itself in the public domain, a particular performance of it, or a compilation of Bach lieders or Dixieland jazz may not be.

Violations of copyright can result in fines or takedown orders (if a video is on YouTube or elsewhere on the web), so it makes sense to pay heed to warnings about copyright.

Bottom line: So-called “copyright-free” music can create a host of issues and complications, and true copyright-free music is harder to find than you might think.

What Is Royalty-Free Music?

Royalty-free music is copyrighted, but it is offered for sale under a license that requires licensees only to pay a one-time fee. After users pay that one-off license fee, they don’t have to pay any further royalties.

This can make royalty-free music a far more affordable and also user-friendly option for producers who don’t want the headache of dealing with ongoing royalties. Users know where they stand, and it’s much easier to budget a one-off fee than worry about a campaign gaining popularity — every ad maker’s dream — only to be faced with additional and unpredictable charges in the future.

To reiterate:

Royalty-free music is not in the public domain. Users do have to pay to use it, but the fee is paid in a one-time fashion, after which the track can be used as many times as the licensee wishes.

Can You Use Royalty-Free Music In Commercial Productions?

Yes, absolutely. Users have to pay the one-off royalty-free license fee and then use the music as they wish. If it’s a commercial project, producers don’t have to pay later royalties to the rights holder.

Can You Use Royalty-Free Music Multiple Times After Licensing It?

Yes. Typically, once the one-off license fee has been paid, the royalty-free track is the user’s to employ as they wish (so long as it’s still recognizable). It can be used in multiple web spots and can also be looped or trimmed to fit the producer’s chosen aims.

Can You Use Royalty-Free Music on YouTube?

Yes, you can use royalty-free music on YouTube, and many creators of popular works do.

What Are Creative Commons Licenses?

There’s a third category, somewhere between royalty-free and copyright-free — namely, Creative Commons license. There are actually six different kinds of Creative Commons licenses. They are aimed at making creative work easier to share and also protecting the rights of creators. Creative Commons licenses can get complicated when users want to use these works commercially or even profit from them via YouTube ad sales.

If a video starts as a noncommercial work and then shifts to a commercial endeavor, it might require changing the nature of the CC license. Additionally, many CC licenses have a number of terms and conditions in the fine print.

The popular musician Moby has a site that allows many of his musical tracks to be used free of charge, which is very gracious of him — but the rights page has many qualifications on projects’ future use, including possible action by BMI and other labels if creators put their short films featuring Moby’s music on YouTube.

The impulse is generous, but the fact remains that music rights are complex, and sometimes the end-use of projects changes (e.g., going from noncommercial to commercially licensed). It can be better to know precisely what you’re starting with and what your rights and conditions are as they relate to a piece of music. Royalty-free music can be a much more straightforward option.

What Are The Advantages of Royalty-Free Music?

The most significant advantages of royalty-free music and sound effects are:

  • With royalty-free licenses, there’s only a one-time licensing fee paid upfront.
  • Ease of use. The music is typically available to be used in any way, and as many times, as the creator wishes. That’s not the case with rights-managed music, where royalties have to be paid over and over again. Additionally, royalty-free music is often found in libraries online — creators don’t have to search through many different internet archives and then check the copyright status of the music.
  • Quality. High-end composers create a good deal of royalty-free music. They come up with tracks they think would make a good fit for producers, so they open them up to the marketplace via royalty-free music sites. These tracks are often better for producers than public-domain music, which can suffer from older recordings and old-fashioned musical genres.
  • Suitability. Royalty-free music is often crafted with the end-user in mind, so it can be a more apt choice for YouTube videos, web commercials, and presentations than public-domain music.
  • There’s a large quantity of quality royalty-free music out there, so the chances are good that a creator will be able to find the music that works for their project.

Royalty-Free Music Vs. Copyright-Free Music: Conclusions

Royalty-free music is an appealing, affordable option for media producers looking to avoid the complications and expenses of rights-managed music. But it’s also a better option than copyright-free music, which could easily be mislabeled, leading to future disruption and possibly penalties. Even if copyright-free music is in fact in the public domain, it’s unlikely to fulfill the requirements of a media producer in 2022 who’s looking for reliable, high-quality compositions.

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