Many musicians and producers today are unsure whether they are allowed to post their own music recordings, videos, and concert recordings on the Internet, e.g., on YouTube, their own websites, or other platforms. When do other rights holders have to be asked for permission? What is GEMA’s role here?
Recently, the Bayerischer Rundfunk asked me about this in an interview. Here are my thoughts on some typical questions:
I. As a musician, can I put my own music recordings on the Internet?
This depends entirely on whether you use your own or third-party content:
1. The music recordings contain original compositions
This is not a problem if you are the owner of all rights. So, you need to ask yourself:
• Did I compose the music and write the lyrics?
• Did I make the recording (sung, played, and recorded myself)?
• If the music was recorded by friends or other people, do I have their (preferably written) consent to use it?
• Have I not used any samples?
• Am I not a GEMA member?
If you can answer YES to these questions, you can freely put your music recordings on the Internet.
There is an exception if you are a GEMA member. GEMA is the collecting society for the management of copyrights to musical works (compositions, texts, arrangements). Usually, you will have granted GEMA many exclusive rights to your works. Exclusive means that you can no longer exercise these rights yourself.
If you then want to use your own music recordings on your own websites, you will need the appropriate GEMA licenses.
If you want to upload the music recordings to platforms of other providers that have concluded agreements with GEMA, they will be responsible for clearing and paying the rights (you only have to ensure that the work and the authors are properly indicated when uploading). You may not be able to upload your recordings to some platforms if they only allow uploads of royalty-free music (as these platforms do not want to pay GEMA licenses). However, you can also upload your own music to YouTube as a GEMA member, as YouTube has (at least currently) concluded an agreement with GEMA.
2. The music recordings contain other works
The legal situation is different here, as there are other rights holders:
a) Cover versions
In a cover version, the composition and lyrics were created by other people (authors). If they have been dead for less than 70 years, their works are still protected (in Germany). It is possible that these authors have concluded publishing contracts with music publishers (who are then also rights holders). The authors, together with the music publishers, are usually members of GEMA (or foreign collecting societies).
GEMA is obliged to grant all users the rights of use granted to it by authors and publishers for the purpose of exercising them by means of a licence. Authors and publishers have also regularly granted GEMA the right to make musical works (as part of music recordings) publicly available on the Internet, e.g., by downloading or streaming.
Important: However, this does not have to be the case. Authors and publishers can also decide not to grant GEMA (or a foreign collecting society) individual rights. In principle, however, it can be assumed that GEMA owns these rights for all works. If you want to be sure, you can search for the corresponding work in the database on the GEMA website under www.gema.de and ask GEMA what rights it owns.
So if the rights for streaming and downloading can be licensed by GEMA, you can use these cover versions accordingly on the Internet. What I said above about original compositions by GEMA members also applies here. That is:
If you want to use the cover versions on your own websites, you need the corresponding GEMA licenses. You may not be able to upload your cover versions to some platforms if only uploads of royalty-free music are allowed there. However, you can also upload cover versions to YouTube, as YouTube has (at least currently) concluded an agreement with GEMA. Please note: There are exceptions for music videos (see below).
b) Remixes, new arrangements, changes, edits, etc.
It becomes problematic when you change the original works (rearrange, change the sequence, change lyrics, add melody sequences, etc.). This is an adaptation under copyright law. GEMA does not grant users the right to edit. GEMA only grants users the right to use original works in the original form (as “cover versions”), although a certain amount of interpretation is legally permissible (e.g., a rock band studio production initially recorded with multiple artists is played by you as a singer-songwriter with only your guitar). If you go beyond a mere interpretation (e.g., you arrange the rock band studio production for a classical orchestra, you produce a remix), you have to obtain the consent of the authors and music publishers. This will be difficult in practice (unless the original creators are open to remixes, e.g., because you are a successful DJ and additional remuneration can be expected).
II. As a musician, can I put my own videos on the Internet?
By videos, I mean all forms of music videos and film recordings of your music with the exception of live performances on stage (see below for such concert recordings).
Again, it depends entirely on whether you use your own or third-party content:
1. The videos contain original compositions
Again, you have to ask yourself:
• Did I compose the music and write the lyrics?
• Did I make the recording (sung, played, and recorded myself)?
• If the music was recorded by friends or other people, do I have their (preferably written) consent to use it?
• Have I not used any samples?
• Am I not a GEMA member?
• Did I record the video?
• If the video was recorded by friends or other people, do I have their (preferably written) consent to use it?
If you can answer YES to these questions, you can freely put your videos on the Internet.
If you are a GEMA member, corresponding GEMA licenses are due (see above under I. 1.).
2. The videos contain other people’s works (cover versions)
It becomes problematic with cover versions. As soon as you combine a musical work (composition and lyrics) with a film in any way, the so-called “synchronization right” is affected (music and film are “synchronized”). In the case of the production of music videos, this synchronization right lies with the authors and music publishers. The exact legal construction is somewhat more complicated: authors and music publishers grant GEMA this right of synchronization under a condition subsequent. In the event of a rights request, authors and publishers can revoke this right and grant the license themselves or prohibit its use. In practice, revocation is the usual case. Therefore, in practice, GEMA usually no longer has this right.
For you, this means that you cannot simply upload music videos with cover versions on your own homepage or on platforms, unless the prior consent of the authors and music publishers has been obtained.
However, there is currently an exception for YouTube. Many authors and publishers allow their works to be used to produce music videos with cover versions via the Content ID system. Then YouTube can even be used for joint monetization. However, this does not apply to all works. With respect to these works, YouTube will probably block your music video.
III. As a musician, can I post my own concert recordings online?
It should be noted here that in the case of concert recordings, another rights holder comes into play, namely the concert promoter. The concert promoter is the one who organizes it and is economically responsible. If you perform as a musician at a city festival, for example, and you have your performance filmed, you cannot put the concert recording on the Internet without the consent of the concert promoter.
However, consent can also be declared verbally (e.g., if you verbally discuss the recordings with the concert promoter beforehand). There may even be implied consent from the concert promoter. Especially on smaller stages, it is now common for concert performances to be recorded with smartphones, tablets, or video cameras and these concert recordings are then posted on artist websites and platforms on the Internet (such as YouTube). If concert promoters knowingly allow such film recordings to happen, in my opinion one must assume that they have consented to this use. Of course, it is different if there are explicit bans on photography and filming by the concert promoter.
So you have to ask yourself again here:
• Did I compose the music and write the lyrics?
• Did I not use any samples during the performance?
• Did I record the concert recording myself?
• If it was made by friends or other people, do I have their (preferably written) consent to use it?
• Did I organize the concert myself or do I have the (preferably written) consent of the concert promoter?
• Am I not a GEMA member?
If you can answer YES to these questions, you can also post the concert recording on the Internet.
If you have to answer NO to any of the questions, the principles described above apply again. That is:
If you play your own compositions at the concert, but are a GEMA member, you must also acquire licenses for your own works. On platforms that have made agreements with GEMA, you can then also post these concert excerpts.
In the case of cover versions, you will again need the consent of the authors and publishers for the production of the film recording. As with music videos, the connection between work and film is a synchronization and you then need the synchronization right from the rights holders. Again, YouTube’s Content ID system might allow the use of the video. Otherwise, YouTube might block your video. You would also need additional consent for edits (new arrangements, etc.).
If you use special show effects (video recordings, sound recordings, laser show, etc.) at your concerts, it may be that there are also copyrights to these elements. Then you must also obtain consent from these rights holders for the use of the concert recording.
In the interest of clarity, I would like to point out that you are of course not allowed to put recordings of concerts by other artists on the Internet. Here the rights of the other stage artists are also affected. If the third-party concert performances contain special show effects, other rights holders are then also affected.
I would be glad to talk to you about your legal needs. Contact me
here.
