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.