Copyright law grants property rights to authors and creators of original works of expression. If you compose a new song, you have a copyright property interest in that song. If someone comes along later and copies your work, they have infringed your property interest and you have a statutory remedy against them.
If you, instead, hear a song that you like and you want to use it for your own purposes (i.e. make a copy and publicly perform it), you should generally try and obtain a license prior to doing so. Licensing musical works is a common occurrence and it basically grants the licensee with a limited permission to copy and use a song.
The problem facing authors of works today is that digital media makes copying extremely cheap and extremely attractive. For instance, if I hear a song I like and want to use it for a video I am making, it is tremendously easy to just go ahead and copy and use the song instead of figuring out who owns the rights to the song and negotiating a licensing fee for my use.
Although licensing a work may seem tedious and unnecessary — not doing so can come back to haunt you.
TuneSat was founded in 2009 as a song monitoring program. Basically, song-owners hire TuneSat to use its technology to scour television broadcasts and the web to listen for any use of its clients’ songs. When TuneSat identifies a client’s work, it contacts the song-user with an automated “infringement notification.” In this notification, TuneSat’s “Compliance Department” requests proof that the song-user has a license for the work. If not, TuneSat informs the recipient that they are subject to thousands of dollars of fees unless an alternative settlement can be arranged.
While TuneSat’s technology has the capability of protecting copyright holders suffering from rampant infringement, it has also been vilified as a bully targeting users with menacing language and the threat of expensive lawsuits for seemingly minor infringements.
The livelihood of songwriters and musicians has changed drastically in the digital age. On the one hand, communications breakthroughs including the internet and wireless transmission have made their works available across the globe. On the other hand, the ease with which users can digitally copy and reproduce works undermines profits that would have come from additional sales. Nevertheless, TuneSat’s relationship with FreePlay Music, LLC can be understandably viewed as less than heroic.
For one thing, many people buy computers with “demo” songs already loaded onto them. But while FreePlay may have issued a license for the personal, at-home use and enjoyment of these particular songs, FreePlay has not permitted their copying and any additional commercial uses. A problem arises when these demo tracks end up as background music in videos published on YouTube, embedded in commercial websites, or used in broadcast media — all uses that exceed the scope of the original personal-use license. TuneSat’s monitoring technology is specifically designed to identify these out-of-scope uses and trigger licensing demands on behalf of FreePlay.
Receiving a TuneSat infringement notification can be alarming. The letter is typically written in formal, threatening language and cites significant potential damages under the Copyright Act. Before you panic or reach for your checkbook, understand the following:
Copyright infringement claims under 17 U.S.C. § 504 allow a copyright holder to elect between actual damages and statutory damages. Statutory damages range from $750 to $30,000 per work infringed, and up to $150,000 per work if the infringement was willful. These numbers, highlighted prominently in TuneSat demand letters, are the maximum possible damages — not automatic awards.
In practice, courts have significant discretion in awarding statutory damages within the statutory range, and they consider factors including the nature of the infringement, the defendant’s intent, the economic harm to the copyright holder, and the defendant’s financial position. An innocent infringer — someone who was not aware and had no reason to believe that their acts constituted infringement — may have statutory damages reduced to as little as $200 per work. 17 U.S.C. § 504(c)(2).
The best way to avoid TuneSat infringement notices is to use properly licensed music for all commercial and public-facing content. Several options exist for obtaining lawful music licenses:
If you have received a TuneSat infringement notification, do not ignore it and do not respond without consulting a copyright attorney. Revision Legal’s copyright lawyers have handled copyright infringement claims, demand letters, and licensing negotiations on behalf of both rights holders and accused infringers. We can evaluate the strength of the claim against you, advise on available defenses, and negotiate a resolution that protects your interests.
Contact Revision Legal at 855-473-8474 or through our website for a consultation.
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