What are synchronization permissions?
Synchronization permissions allow content creators to reproduce copyrighted musical works in audio-visual recordings, such as a video of a marching band or choir performance.
​
Sync licensing is required for recordings, the creation of DVDs and digital downloads, rebroadcasts broadcasts, and on-demand streaming. Sync licensing is not required for live streams or broadcasts occurring in real time. However, public performance licensing is needed for both live streams and on-demand streaming. Many streaming platforms have already obtained public performance licensing. Organizations that directly upload videos to their own website, rather than embedding videos first posted to YouTube or Facebook, should confirm whether additional public performance licensing is required for their website.
Do streaming websites allow content creators to include copyrighted music in videos?
No. It's a common misconception that streaming platforms allow content creators to use copyrighted music in their videos. Streaming platforms, like Google (YouTube), Meta (Facebook and Instagram), and TikTok do not grant content creators the right to stream videos of their musical performances, exposing schools, colleges, and nonprofits to copyright infringement claims absent synchronization permission:
-
Facebook, Music Guidelines: "[Y]ou remain solely responsible for the content that you post, including any music that is featured in that content. Nothing in these terms constitutes any authorization by us with respect to any use of music on any of our Products."
-
Google Support, YouTube Help: "If you plan to include copyright-protected material in your video, you'll generally need to seek permission to do so first. YouTube can't grant you these rights and we can't help you find the parties who can grant them to you."
-
TikTok, Terms of Service: "If you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not post such sound recordings to the Services unless you have all permissions, clearances from, or are authorized by, the owner of any part of the content to submit it to the services."​
Why is this a common misconception? Many streaming platforms have entered into agreements with rights holders that protect the streaming platforms from litigation in exchange for monetary payments. For example, YouTube uses Content ID to identify copyrighted music in a video and permit rights holders to monetize (by adding advertisements) or takedown that video.
However, content creators, like schools, colleges, and nonprofits, may still be pursued for copyright infringement for creating and uploading videos that contain copyrighted musical works.
Are public performance and sync licenses the same?
No. Public performance licensing permits the public performance of copyrighted musical works. A public performance can take different forms, including live and in-person ensemble performances, playing music via a PA system, and streaming music to the public live and on-demand. In each of these cases, public performance licensing is required.
​
Organizations that issue public performance licenses are called "performing rights organizations" or "PROs." In the United States, PROs include ASCAP, BMI, SESAC, and GMR, as well as public performance licensing resellers like CCLI. Although rare, some songwriters and music publishers choose not to join a PRO and issue public performance licensing directly to the public.
Public performance licensing (whether obtained from PROs or directly from songwriters and music publishers) is not the same as sync licensing. Sync licensing permits the reproduction and recasting of a copyrighted musical work within an audio-visual recording. Sync licensing is commonly required for DVDs, MP4 digital downloads, film and television shows, and on-demand streaming. Although sync licensing is not required for in real time live streaming, public performance licensing is required for both in real time live streaming and on-demand streaming.
​​Public performance licenses from ASCAP, BMI, SESAC, GMR, and CCLI might already include public performance licensing for on-demand streaming of audio-visual recordings. Be sure to check your public performance licensing terms to see if you will require public performance licensing in addition to sync licensing for on-demand streaming on your school's, college's, university's, or nonprofit's website.
​
As a reminder, most K-12 schools are exempt from public performance ​licensing for live and in-person student performances under the US Copyright Act of 1976, 17 U.S.C. § 110(4).​
Do I need sync licensing for "archival" videos?
Yes. Under the US Copyright Act, copyright owners have the exclusive right to reproduce and recast their copyrighted musical works in videos.
The US Copyright Act creates an exemption known as the "archival exemption." This exemption permits the reproduction and distribution of certain copyrighted works by libraries and archives without the copyright owner's permission for the purposes of preservation, replacement, and research.
The exemption only applies to libraries, archives, and their employees acting within the scope of employment. It does not permit, for example, a library user to photocopy materials without permission. Likewise, it is limited to the reproduction and distribution of literary and dramatic works, and does not generally apply to musical works, pictorial, graphic, or sculptural works, or to motion pictures or other audio-visual works.
There are several additional requirements, including that copying must be done without a commercial advantage, the library or archive must open its collections to the public, and no more than one copy can be made.
In sum, the archival exemption does not apply to the video recording and on-demand streaming of musical performances for "archival" purposes.
Can I create videos under the TEACH Act?
Not for the purposes of online streaming to the public. The TEACH Act, 17 U.S.C. § 110(2) does not permit the creation of audiovisual recordings and streaming of musical performances to the public. The creation of an audiovisual recording of a musical performance is a reproduction of the copyrighted musical work being performed, whereas the TEACH Act concerns the performance or display of copyrighted musical works for distance learning purposes. These are separate copyrights. 17 U.S.C. §§ 106(1) (reproduction right), (4) (public performance right), and (5) (display right).
What does the TEACH Act permit?
To understand the TEACH Act, it is important to understand the concept of "transmission." Transmission refers to the act of undertaking an activity in one location (e.g., performing a musical work in a concert hall) to be received by people in a different location (e.g., viewers watching the performance at home). 17 U.S.C. § 101 (defining "transmit").
​
For example, in a distance learning environment, a teacher at school could be providing a lesson to students who are at home. This is a transmission. The TEACH Act was enacted to allow teachers to use copyrighted works for distance learning purposes, enabling a teacher at school to - for example - read a portion of a copyrighted book to students at home.
​
So, how does the TEACH Act work?
​
First, the TEACH Act permits the performance or display of copyrighted works by transmission in a classroom context. 17 U.S.C. § 110(2). The copyrighted work "may not be performed or displayed for the mere entertainment of the students, or as unrelated background material." S. Rep. 107-31, 107th Cong., 1st Sess. 11 (2001).
For example, in a distance-learning setting, a teacher could play a copyrighted musical work to students watching the teacher or read a section of a copyrighted book out loud. However, the TEACH Act requires any copies use in the lesson to have either been made or acquired lawfully. 17 U.S.C. § 110(2). If the teacher obtained the sound recording from a pirated website or photocopied the book from a library without permission, the TEACH Act would not apply. If the teacher purchased the recording lawfully from iTunes or bought a copy of the book, the TEACH Act would apply.
​
In addition, the TEACH Act does not include the right to perform or display textbooks, course packs, or other material in any media, copies of which are usually purchased or acquired by students in higher education for their independent use and retention, and does not include materials that are produced and marketed for the express purpose of distance learning. 17 U.S.C. § 110; S. Rep. 107-31, 107th Cong., 1st Sess. 8 (2001). N. 160 and N. 126.
​
The reason for these limitations is that Congress wanted to avoid the possibility of using the TEACH Act to scan, photocopy, or otherwise reproduce copyrighted works to be used as lesson materials without permission. S. Rep. 107-31, 107th Cong., 1st Sess. 8 (2001) ("[T]he purpose of the exclusion is to reduce the likelihood that an exemption intended to cover only the equivalent of traditional concepts of performance and display would result in the proliferation or exploitation of unauthorized copies"); S. Rep. 107-31, 107th Cong., 1st Sess. 9 (2001) ("An educator would typically purchase, license, rent, make a fair use copy, or otherwise lawfully acquire the copy to be used.")
​
The TEACH Act imposes additional requirements on educators and schools. For example, any transmission must be made solely for students officially enrolled in that course (not members of the public) and schools must adopt copyright policies, must apply technological measures that reasonably prevent retention of the work for longer than the class session, and prevent further dissemination of the work by students or faculty to others. 17 U.S.C. § 110(2)(A) to 110(2)(D).
Second, the TEACH Act allows the reproduction of copyrighted works for asynchronous distance learning under 17 U.S.C. § 110(2).
A governmental body or other nonprofit educational institution may therefore reproduce a copy of the lesson (e.g., pre-recording a teacher's lecture in which the teacher reads a section of a copyrighted book), including any copyrighted works used within the lesson. 17 U.S.C. § 112(f). This avoids schools having to edit lesson videos by removing copyrighted works used within them. These recordings must be retained and used solely by the government body or nonprofit educational institution and must only by used for the purposes outlined in 17 U.S.C. § 110(2). 17 U.S.C. § 112(f)(1).
​
Further, 17 U.S.C. § 112(f) does not authorize the conversion of print or other analog versions of works into digital formats, with limited exception. The purpose of this limitation was to avoid the scanning and digitizing of copyrighted works to avoid the purchasing copies.
What are dramatic performances?
A dramatic performance is “a performance of a musical composition that is woven into and carries forward a definite plot and its accompanying action.” B Kohn, Kohn on Music Licensing (5th Edn. 2019) at 1315-1316. Dramatic performances include theatrical, balletic, and operatic performances, as well as musical revues. liSynce does not cover videos of dramatic performances.
Do synchronization permissions cover the use of sound recordings?
No. Permission to use a copyrighted sound recording (e.g., Coldplay's own recording of "Yellow") within a video requires both synchronization permissions and a master use licenses. Master use licenses must be obtained from the relevant record label. liSynce does not include master use licensing. Tresóna encourages the use of cover sound recordings, which are generally easier to license for video and remix purposes. Tresóna has its own catalog of available cover recordings for use in streamed videos.
Can we charge people to watch our videos?
No. Under the liSynce terms and conditions, organizations and ensembles are not permitted to charge viewers subscription fees or other viewing charges. Organizations and ensembles are also prohibited from monetizing their videos or using videos for commercial purposes by, for example, adding advertisements or claiming and monetizing them on relevant platforms.
What is a professional ensemble or soloist?
"Professional" ensemble or soloist means an ensemble or soloist whose performers are primarily engaged and paid to perform. Military bands are considered non-professional for the purposes of liSynce.