The Truth About “First Use” Song Licenses

Lately, I’ve run into several interesting situations with “first use” song licenses, so I thought I’d try to educate and enlighten just a bit here.  Copyright law allows the copyright owners to control the FIRST recording of any song.  After that, a compulsory license kicks in.  After the first license is granted, then ANYONE who wants to record the song may request a license and they must be granted the license.

How does this come into play in the real world?

I’m glad you asked.  Once upon a time, a major artist recorded one of my songs.  I was thrilled!  But, when the artist was finalizing their record, they did not include my song.  Bummer!  Then, another major artist decided HE wanted to record that song.  I was elated!

Then the trouble begins.  Because artist #1 had decided not to include my song on his record, his label didn’t request a license.  So, when artist #2 came along, we granted the license.  Then, artist #1 decided he DID want my song.  But, we had already licensed the song to artist #2 so he couldn’t put his song out until after artist #2 released his version.

So, artist #1 waited until artist #2 put out the song and then artist #1 released the song several HOURS later.  Not how it’s usually done, but that’s how it played out in real life.  Both of them released the song on the same day, one with a compulsory license (artist #1) and one with a “first use” license (artist #2).  Head spinning yet?

In another scenario with some friends of mine, an independent artist wanted to record a song that 3 people wrote.  Not all of the writers were aware that it only takes one copyright owner to license a song.  So, the artist was able to record the song by just getting ONE of the writers to approve the license, even though the writers were not unanimously in support of this cut.  I had this same scenario come up recently.  I contacted both of my co-writers, got everyone on the same page in regard to granting the license, and THEN gave the artist the go-ahead.

Several people have asked if a songwriter performing his/her own song at a songwriter night is considered granting a “first use” licensing by default.  The answer to that question is generally “no”, with some gray areas thrown in.  Just performing my own song at a songwriter night is not likely to be considered a “first use” by anyone.

The waters get a bit more unclear when I start streaming my performances or posting them on social media.  Some people have considered that a “first use”, but it is not widely accepted to be the case.  However, it is important for songwriters to understand the terms they are agreeing to when posting on Facebook, Instagram or any other platform.  Some of the language in those agreements indicates that you probably are granting a “first use” license by posting on their platforms and they could possibly even become owners of your master recording (or your video) simply because you posted it there.

So, what should songwriters do?

#1 Consult a lawyer anytime there is a real question regarding your copyrights and licensing.

#2 Discuss with your co-writers what your agreement will be in regard to licensing.  My co-writers and I agree that we can individually grant a license to any major label artist.  If an independent artist wants to cut the song, we get unanimous approval before any of us agree to the cut.  That saves a lot of hard feelings and issues down the line.

#3 Educate yourself about licensing and how it works.

#4 Know what you are agreeing to if you stream or broadcast your performances.

A little education goes a long way and it can help you decide whether to hold out for that Bruno Mars cut or to let your friend Billy Joe Simpson license it for his next EP.

Write On!

Marty Dodson

Marty Dodson - pro songwriter/instructor - SongTown

SongTown Co-Founder

17 thoughts on “The Truth About “First Use” Song Licenses

  1. Marty,

    Do any of these things change to the better or worse when works are not you performing but rather the performance of a demo studio for which you paid?

  2. Marty. You did not answer Steve Bruce’s question above, and I’m basically asking the same question. If I post an original recording on Facebook, does that mean they own the master recording or they own the copyright, if I have not register it yet? Further: What if I haven’t yet registered the copyright of the song, and someone else sees/hears the song on FB, and then registers a copyright of the song as their own. Does my posting of the song on FB not show that I was the original copyright holder? Thank you in advance for your response.

    1. Stephen, sorry for the really late response here. You can always ask questions like this in the “ask Marty and Clay” forum and we almost always get to all of them. We don’t always see questions here. To answer your question, your song is technically copyrighted the minute you write it. But, the issue becomes PROVING when you wrote it. In your example, your posting on Facebook might be enough evidence to prove something. Not when you wrote it, but at least when you posted it. But, you can’t copyright a title and someone could potentially see your song there and just go write their own song with the same title. And, there is murky water around Facebook’s terms of service. I personally don’t post any of my songs there unless they have already been recorded and released. That’s the safest option.

  3. I really thank you for posting this Clay. I think that it will clear up a lot of questions for a lot of people. I know that it has for me. Duncan.

  4. Very interesting story in that first scenario…what are the odds? lol. I agree on your solution number 2 I think that’s a smart way to go. Thanks as always for posting and sharing 🙂

  5. Hi Marty,
    Really! Is there language in Facebook that says if I post a new and original song/recording on Facebook, that Facebook would own my master recording?
    Steven Bruce
    PS. Marty, you did a great job at the TAXI Road Rally about three years ago!

  6. What about if your song demo is played on your website or sites like Reverbnation/Soundcloud as a sample of your work as a songwriter? Or if you win a song contest, and they play your winning song on their website? Are any of those scenarios considered a commercial release so that anyone can then record the song using a compulsory license? I’ve had that happen to me.

    1. Debra, those are gray areas. Generally, it is not considered a first use license if the songwriter is posting the song on their own to demonstrate their work. To my knowledge, song contests have not been consider a first use license either

  7. I think a lot of people do themselves a disservice by NOT hiring a copyright lawyer and asking these kinds of questions. It doesn’t cost that much.

    About 18 years ago, we wrote a sequel to a very well known song. 10 years ago, I hired a copyright lawyer to talk about releasing it, even though it was written to another tune. That $175 was the best money I could have spent. I got an hour of his time, but only needed 15 minutes. That was one of the best investments I’ve ever made. I also hold a copyright in the US Copyright office.

  8. Do you know if a fan posts a recording of the songwriter playing his own song in a round, does it jeopardize the songwriter in any way? What if it’s a snippet vs. the whole song? Thanks.

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