THE BLOG
08/10/2007 03:37 pm ET Updated May 25, 2011

Lawsuit: Music Publishers v. YouTube Doesn't Solve the Problem

The National Music Publishers Association (NMPA) has joined an existing lawsuit accusing YouTube of copyright infringement. Since their purchase of YouTube, it has been open season on Google. Rights-holders know that Google is truly made-of-money and aggrieved content owners now have a target with very deep pockets to sue.

Lawsuits will not solve the problem, which is: there is no easy way to identify who owns which rights in and to most pieces of music and there is no easy way to get a quote and pay them.

If you don't believe me, pick up the phone and call a recorded music company, publisher, performing rights society or someone else you think might administrate the rights you seek and tell the person who answers the phone you want to purchase public performance rights for a particular song. Good luck. Maybe, if you retain a special music clearance firm or seasoned entertainment attorney, you can complete the process of obtaining the rights to use a particular song in sync with a video you want to put online. But, even if you are successful, the process can take days or weeks and cost thousands in attorney's fees (over and above the negotiated cost of the rights you seek).

While we are on the topic, what rights should you be seeking in the first place? Let's review:

Master Rights -- the physical master recording (audio and video). These rights are usually owned by the producer, record company or movie studio that paid for the production. You must negotiate with them to use the work.

Mechanical Rights -- the 9.1 cents per cut on a CD or per download that is compulsory under the current copyright laws (it is usual and customary to only realize approximately 60 percent of this amount on any give mechanical royalty) These rights are usually negotiated for and collected by The Harry Fox Agency, although they can also be negotiated independently. These royalties are usually divided up by the record company, the publisher(s), the producers, performers, composers and other interested parties.

Public Performance Rights -- if the work is broadcast or streamed over the public Internet, you are entitled to your personally negotiated fee or, if you are so inclined, you may be non-exclusively represented in the USA by one of three performing rights societies, ASCAP, BMI or SESAC. Although the split is often the subject of negotiation, traditionally composers and their publishers split these fees 50/50. And, for the most part publishing companies administer and, therefore negotiate with people who wish to use the work.

Sync Rights -- if the work is a piece of music that is synchronized to a piece of video (title music, theme music, background music, music for a music video, music for a film or TV show, etc.) you are entitled to a fee. Although the split is often the subject of negotiation, traditionally composers and their publishers split these fees 50/50. And, for the most part, publishing companies administer and therefore negotiate with people who wish to use the work.

Royalty Payments to Unions & Guilds -- If union performers have contributed to the work (singers, musicians, etc.) there are residual payments to be made. And, even if the performers are independent, they may still be entitled to a share of the profits from their creative contributions. This depends, of course, on how egregious the terms of the non-union performers' contracts were with the original producers of the work.

Note: The list above contains the most common types of music rights. There are others such as folio, parody, moral, etc. For a complete list, contact your favorite entertainment lawyer.

What to do? Well, it would be nice if the music publishing industry would invest in some database software, web interfaces, email and Adobe Acrobat. Most deals are done with fax machines and, to tell you the truth, it's like working with stone axes and bear skins. I just obtained the rights to a very popular song for a client from the largest publisher in the world. The deal was done with paper faxes and the form was annotated in magic marker so you could read it after it had be sent back and forth six times. This would actually be funny if it weren't true.

It would also be nice if the metadata associated with files on the major download sites had rights-holder information, as opposed to useless phrases like, "Copyright 1997 Warner Bros. Music." Go ahead, call the Warner Bros. switchboard and ask for the person in charge of public performance rights for that particular song. If you're lucky, you will get someone on the phone who will tell you that you have to call the publisher to make a public performance deal, who is ... umm ... errr ... who? But I'm giving credit where it's not due. There's no way that you get that far with a call to the main switchboard of any major recorded music company.

If people don't know what rights they need to obtain, and if there's no easy way to obtain them even if they do know, exactly what do rights-holders expect? More to the point, how does suing YouTube help solve the problem? They don't synchronize music to video, they simply distribute other people's works. How about spending some time and energy building the music licensing business of the present. Hey music publishers -- it's 2007! On your way to the courthouse, hop on over to Best Buy and pickup a computer or two and a book on database management and search engine optimization? That would really help.