The challenges of “royalty-free” music


Bob Marley has previously been quoted as saying “A good thing about music, when it hits you you don’t feel any pain”. However, this statement may not ring true for victims whose musical works have been exposed to copyright infringement. For generations, music has given soul to the works of artists around the world, and the importance of legal protection for these works has grown simultaneously. Music producers zealously tackle copyright infringement wars as it threatens to wreak havoc on their artistic endeavors. In a similar case of infringement of Grand Upright Music Ltd v. Warner Bros. Records[1], the presiding judge declared that “you shall not steal”. But what if you had no intention of stealing someone else’s intellectual work and just wanted to explore cheap options without having to pay high royalties. Given the general public’s benevolent understanding of convoluted copyright law, fair use terms, and the Web 2.0 era, it is evident that the lawsuits would end. The article will look specifically at the royalty terms with respect to musical works and shed light on the ongoing legal battle between Freeplay Music, LLC. and Ford Motor Co.

What are “copyright-free” works?

A general misconception would be that “royalty free” music is free to use, which it is essentially not. Simply put, “royalty free” means that once permission is obtained from the copyright owner, the user does not have to pay any compensation or “royalty” for the recurring use of the copyright. work protected by copyright. Unfortunately, India’s copyright law does not define the term “royalty”, but instead provides guiding parameters for the Copyright Board to calculate the amount of royalty to be paid for the use. of a work protected by copyright.

As a general rule, if a copyrighted musical work is used in a home video, it will not result in any legal liability and will qualify as fair use, but the exemption will drop if it is used for commercial purposes. . This is where royalty-free works come in to be useful to content creators who are looking for platforms to provide them with cheap and hassle-free music content. In fact, most of these platforms like Audio Jungle, Soundstrip, AUDIIO, Ben Sound operate with non-exclusive annual license fees. One of these platforms is Freeplay Music, LLC. (“FPM”) which allows users to benefit from copyrighted musical works by entering into an automated license agreement for commercial and personal use. A nifty advertising technique to attract with “free” content, but no copyright owner would in fact allow another to profit from their intellectual property without adequate compensation. As part of its partnership with YouTube in 2013, users can benefit from FPM’s services free of charge. provided for personal use and upon payment of an annual fee for commercial use on media platforms[2].

The Copyright Battle – Freeplay Music, LLC. Vs. Ford Motor Co.

In April 2020, automaker giant Ford Motor Co. (“Ford”) found itself in a copyright infringement battle with FPM. The federal lawsuit was filed in the state of Michigan, in which FPM argued that Ford used several songs as part of the background music in its promotional ads in April 2017, without obtaining a license or paying royalties. According to its claims, FPM first became aware of copyright infringement when audio recognition company TuneSat identified 54 songs on its library of 50,000 songs, used in 74 commercials and therefore requested statutory damages valued at USD 150,000.[3] per counterfeit work, amounting to USD 8.1 million.

On the other hand, Ford accused FPM of false advertising through its business name and deceptive marketing communications, according to which consumers At first glance mistakenly assume that its music content is free, when in fact the payment terms were buried in cumbersome terms and conditions and the detailed license fees were added to its website for public viewing only in 2018.

Extent of Liability When Using “Free” Music in a Copyrighted Work

In the case of FPM in particular, its policy is that all songs are free to download, provided they meet the stipulations mentioned below.[4] –

  • Youtube – The content is only intended for personal use on YouTube. The user also grants the explicit right to FPM and YouTube to insert advertisements in any way, whether or not they are incidental to the user’s video content, when uploading to YouTube or other platform. YouTube form. An interesting point here is that nowhere is the definition “personal use” described for the better understanding of users. For commercial purposes, the user must obtain a license for professional use.
  • Education – FPM content is free for use in educational and learning projects.
  • National TV show – Content is free to all eligible network broadcasters operating on a national basis.

A At first glance reading of FPM ‘Limited license‘reveals that he is non-exclusive, revocable, non-assignable, personal and non-transferable license to download, display, view, use, play ‘the contents” on a personal computer, browser, laptop, tablet, mobile phone or other device connected to the Internet and / or print a copy of the content as displayed, in each case for personal, non-commercial use only. It clearly states no copyright ownership rights, or any other intellectual property right in said content and may be immediately suspended or terminated for any reason, at FPM’s sole discretion, laying the foundations for user responsibility[5]. Therefore, a user can only escape liability if the content is used in a personal video, which roughly translates to a personal video intended only for private viewing. For the purposes of YouTube, the user may have to register the video content as “private” in accordance with YouTube’s settings or risk being removed from the platform.

Read the fine print in the terms and conditions

It is safe to say that most users have a habit of ignoring any service’s “terms and conditions” policy by default, but these electronic contracts (which do not require certification) have been confirmed for validity. legal in courts, even in India. So, would FPM incur any liability for advertising its services as “free” leading its users to believe that they are not infringing any copyrighted work or is this a strategy? authorized marketing? One of the fundamental facets of a valid contract is “offer and accept”, and an offer that cannot be seen should not be considered valid. It is up to the service provider to mention these conditions in a simple and clear language, with a clear visibility for the comprehension of a user, otherwise they would be made inapplicable. In Specht vs. Netscape[6], the United States Court of Appeals for the Second Circuit confirmed that a user cannot be held responsible for terms and conditions that were not sufficiently visible. However, entities like FPM typically have a foolproof licensing agreement, with complex legal jargon that users unaware of intellectual property would reasonably not understand.

Additionally, it is worth mentioning that FPM allows itself to make a profit by serving advertisements on the user’s home videos, in addition to charging a license fee for the commercial use of its content. Therefore, the service may appear “free” to the user, but can in fact be a nifty way to secure a license fee.

Ford accused FPM, similar to a 2015 feud with Machinima, Inc., of breaching fair competition by misleading the public with its elaborate display of the word ‘free’ in its trade name and its services entitled “Free songs for YouTube and more », as a means to usurp the license rights of its users[7]. In addition, it has been argued that instead of issuing a takedown notice, FPM sends a notice threatening legal action unless the user agrees to pay the license fees, allegedly sent by TuneSat, a company with close ties to FPM.

A case of counterfeiting or false advertising?

Commercial exploitation of copyrighted musical works has often led to legal battles due to the lack of a valid license agreement. In 2020, online music platform Spotify settled a $ 1.6 billion infringement claim with Wixen Music Publishing for allegedly streaming the songs without a proper license.[8]. Platforms that offer users free use of their copyrighted works are strictly required to clearly identify the terms of the agreement to their users, as it is unreasonable to expect that a user understands the implied intention of the service provider. So, there seems to be a valid argument that Freeplay’s open way of publicizing free services might in fact be a secret way to trick users into extorting lucrative license fees and, therefore, bogus advertisements and practices. of misleading licenses.

Although copyright law allows each copyright owner to exercise ownership over their work, such practices do not always encourage creativity and may even hinder productivity, as lawsuits are notorious. to use up money and time while they wait. Guilty or not, this highlights the growing importance of having a clear understanding of your intellectual property rights in your work and knowing where the line of fair use ends and where infringement begins.

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