Website and Software Permissions

E. Obtaining Permission to Use Copyrighted Materials

If you want to use material that is not in the public domain and your use doesn't qualify as a fair use, you need to get permission. With the notable exception of the music industry, which has had a system of rights collectives in place for many decades, obtaining permission to use copyrighted materials in a website or software project can be a difficult, time-consuming, and often chaotic process.

Obtaining permissions can be especially hard because, for a variety of reasons, many copyright owners are reluctant to grant any website or software permissions. Many owners are reluctant to permit their work to be reduced to digitized form for fear they will lose control over unauthorized copying. Still others intend to launch their own website or software ventures and don't want to help potential competitors. Some owners will grant permission, but only for exorbitant amounts of money (there are generally no standard rates for such permissions).

Securing a website or software permission, then, can require a good deal of persistence, salesmanship, and creative negotiating on a developer's part.

For a detailed explanation of how to go about getting permission and all the forms you may need, refer to Getting Permission: How to License & Clear Copyrighted Materials Online & Off, by Richard Stim (Nolo).

Expect permissions to take anywhere from one to three months to negotiate and obtain. The first step is to learn how much a particular work would cost to use. Depending on your budget for obtaining permissions, the cost might make your decision for you, if it is beyond your means. Often copyright owners have a sliding scale of fees for different uses. Commercial uses are usually more costly than nonprofit uses.

It is best to obtain written permission before you begin using the copyrighted work. But you should absolutely obtain it before your project is completed. It is sometimes more difficult and more expensive to obtain permission after a website or software program is completed. If the copyright owner becomes aware that you have a vested interest in obtaining permission (for example, your website is already online), the price may rise. In addition, if you can't obtain permission, you'll have to re-do the work, which can be expensive and time-consuming. The best policy is to start seeking all required permissions as soon as possible.

Written Materials (Text)

Obtaining permission to use any type of copyrighted written materials -- excerpts from books, magazines, journals, and so forth -- can be merely difficult or simply impossible. There is no single, centralized group or organization granting such permissions and there are no standard fees. You -- or someone you hire -- must track down the copyright owner of the material you want to use, or her representative (usually publisher or agent), and cut your own deal.

Photographs

If you need photographs, several sources are available:

• you can use commercially available clipmedia -- materials that are typically published on websites or CD-ROM disks specifically for users to incorporate into websites, software, and other works. (Review the license agreement that comes with the clipmedia to make sure you can publicly distribute the material for commercial purposes);
• you can try to get the rights to use photos that have appeared in magazines, books, and other publications;
• you can directly contact photographers and try to get permission to use their work; or
• you can deal with stock photo agencies -- companies that acquire the rights to photos and license them over and over again to magazines, advertising agencies, book publishers, and others.

Film and Video

A variety of film and video footage is available from stock houses -- companies that acquire the right to license films and videos. A good place to begin a footage search is Footage.net (www.footage.net).

Drawings and Other Artwork

Permission to use and reproduce drawings, paintings, and other works of art must be obtained from the owner, or sometimes the artist. Artists sometimes retain the reproduction rights to a particular piece while selling the piece itself and the right to display it. The person or entity controlling the reproduction rights must be tracked down -- whether a museum, individual collector, artist, or artist's estate. Fees and terms for such rights vary widely.

Cartoons

The rights to cartoons are usually handled by distribution syndicates or agents. A flat fee is customarily charged for a limited-time use. You should be able to find out whom to contact for permission by calling the publication in which the cartoon appeared.

Music

Although the music industry has in place a standardized process for obtaining permissions, the procedures and expenses can be formidable. Keep in mind that there are two distinct copyrights associated with recorded music: one for the musical composition and the other for the recording.

This means that to make a new recording of a song for inclusion in a website or computer program, a developer must obtain permission from the music publisher. But to use an existing recording, permission must be obtained from the music publisher and the recording company.

Making new recordings of existing music for software

The music industry has developed a process for obtaining permission to make a new recording of existing copyrighted music and reproducing it in a multimedia program. The Harry Fox Agency -- a subsidiary of the National Music Publishers' Association -- issues licenses and collects and distributes royalties on behalf of music publishers who have entered into agreements with Fox for this service. The agency can be contacted at www.harryfox.com.

The Harry Fox Agency handles what are known as mechanical and synchronization licenses -- licenses to record a song or other musical composition and use it in conjunction with still or moving images. This is sufficient for personal use of a multimedia program.

Using existing recordings for software

Obtaining permission to use an existing recording can be more difficult and expensive than making a new one. First, it is necessary to obtain the mechanical and synchronization rights to the music itself through the Harry Fox Agency, as outlined above. If the multimedia product is to be performed in public, a performance license must also be obtained through one of the appropriate performing rights societies, listed below:

• ASCAP (American Society of Composers, Authors & Publishers) (www.ascap.com);
• BMI (Broadcast Music, Inc.) (www.bmi.com);
• SESAC (Society of European State Authors and Composers) (www.sesac.com).

Permission must also be obtained to use the recording itself (termed "master recording rights") from the owner of the copyright in the recording.

The "special markets division" of the appropriate recording company must be contacted to obtain master recording rights. The recording contract must be examined to see who has the right to grant permission to reuse the recording. This may be the record company or the artist. Recording companies are generally reluctant to permit their recordings to be reused, particularly if a well-known song is performed by a well-known artist. Where obtainable, permission to do so is usually very expensive. Musician union agreements may also require that reuse fees be paid to the musicians, vocalists, and others who worked on the recording.

Webcasting and audio streaming rights

There are two common ways to transmit music over the Internet: downloading and streaming. Audio streaming (and webcasting) is a process by which digital music is broadcast over the Internet, much like a radio station broadcasts music. The computer user hears the music simultaneously as it is being played by the website. Both webcasting and audio streaming are referred to as "digital audio transmissions."

• If you created the music and the recording, no permission is needed for digital audio transmissions.
• If you are using someone else's song but you have recorded your own version, you will need both performance and mechanical rights permissions from the music publisher.
• If you are streaming a song that is owned by a music publisher and a record company, you will need permission from both entities.

EXAMPLE: Larry develops a website for a perfume company. He wants to stream a recording of "Addicted to Love" by Robert Palmer. He will need permission from the publisher of the song and from the record company that owns the Robert Palmer classic in order to permit downloading of that version.

Below we discuss each type of permission.

Music publisher permission for streaming website use

Before offering a song for streaming at a website, you'll need permission from the music publisher. The rules for how to pay (and how much to pay) have changed over the past decade.

• Payment to Music Publisher for Reproduction. For songs previously recorded and released in the U.S., permission can be obtained by using what is known as a compulsory license. In terms of payments, music publishers consider downloads the same as compact discs or cassette recordings. You must pay the compulsory rate per copy.
• Payment for Transmission. The Digital Millennium Copyright Act permits webcasters to obtain a statutory license for webcasts. That license permits webcasters to stream all the music they want provided they pay the royalties on the songs they broadcast. A webcaster who meets the requirements set forth below should seek a statutory license from:

  Library of Congress, Copyright Office
  Licensing Division
  101 Independence Avenue, S.E.
  Washington, D.C. 20557-6400
  

If a webcaster doesn't meet these requirements, than it's back to square one: getting permission from each song publisher (song copyright) and music label (sound recording copyright).

Below are some of the criteria webcasters must meet to qualify for a statutory license. You can find all of the requirements at www.riaa.com.

• A webcaster may not play in any three-hour period more than three songs from a particular album, including no more than two consecutively, or four songs by a particular artist or from a boxed set, including no more than three consecutively.
• Prior announcements are not permitted and advance song or artist playlists generally may not be published. However, webcasters may announce the names of a few artists to promote the type of music played on the site or channel. If an artist's name is announced, the webcaster may not specify the time that artist's song will be played.
• Programs that are performed continuously, automatically starting over when finished, may not be less than three hours in duration. Merely changing one or two songs does not meet this condition. Additional parameters for these types of programming are set by the license.

Website downloads

To provide downloads (officially known as "digital phonorecord delivery" or DPDs) at a site, you'll need to obtain permission from the owner of the song (music publisher) and owner of the sound recording (record company). Of course, if you have self-produced the recording and created the music, there's no problem. But if not, you must get permission to permit downloads. Without permission, the owners can require that you remove the recording and perhaps make you pay financial damages. The same rules would apply for downloads as well as for streaming.

Music clearance firms

Developers who do not wish to go to the time and trouble of obtaining music permissions themselves can retain the services of music clearance firms. For a fee, these companies will request, negotiate, and process music permissions. Using such firms will usually be cheaper than retaining a music attorney, and they are often more effective. These firms are located primarily in New York, Los Angeles, and Nashville, the centers of the music business. One of the best known firms is BZ Rights and Permissions, Inc. (www.bzrights.com). For more information on clearance firms, read Getting Permission, by Richard Stim (Nolo).

Production music libraries

Production Music Libraries ("PMLs") provide an inexpensive method of obtaining rights for original music and sound effects on a nonexclusive basis. PML music, which is primarily instrumental, is used in films, websites, slide shows, radio and television programming, commercials, software and multimedia, training videos, in-flight services, and similar applications.

Like stock photography, PML music is categorized by genre or mood (old time rock and roll, outer space, etc.) and is sold on compact disc collections on a royalty-free basis, for a blanket fee, or on a per use basis. A typical PML compact disc may contain ten to 15 original compositions, including a full-length version of each composition as well as shorter "tag" or "cue" version. Larger PMLs have hundreds of compact discs in their collection. Using the Internet, it is possible to search through these collections and hear samples.

Software

Websites and computer programs often include third-party software -- software "engines" -- that drive the program and application software programs to support graphics, sound, and animation. A license from the copyright owner must be obtained to distribute third-party software with a multimedia program. To obtain such a license, contact the software publisher.

Next: F. Privacy and Publicity Problems

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