Under copyright laws, there is no "private, at-home use" restriction imposed on users of purchased CDs or MP3 files.

Under the United States Copyright Act of 1976, soloists and ensembles who purchase lawfully made CDs or MP3 files are free to use their purchased copies as desired. This is a consequence of the "first sale doctrine," which allows the "owner of a particular copy or phonorecord lawfully made . . . to sell or otherwise dispose of the possession of that copy or phonorecord." [1] For example, someone who buys a CD is free to sell, trade, gift, or otherwise dispose of that CD without the copyright owner's permission.

Under the first sale doctrine, copyright owners cannot "impose post-sale restrictions on purchasers that are enforceable through [copyright] laws." [2] This is true, even if the copyright owner requires the vendor (e.g., iTunes) to impose use restrictions on its customers. [2]

The first sale doctrine only applies to purchasers, not licensees.

The first sale doctrine only applies to owners of particular copies of sound recordings, not licensees of sound recordings.

People who purchase sound recordings off of iTunes (or similar sites) are purchasers of music and not licensees. [3] In the only lawsuit addressing CDs, a record label sought to enforce a "personal use" license placed on promotional CDs it sent to various people. [4] The court ruled that the record label failed to impose the "personal use" restrictions for various reasons. [4]

Soloists/ensembles cannot use private subscription digital streaming services in public.

Soloists and ensembles cannot use individual Spotify, Apple Music, or Amazon Music accounts for public performances because they are only licensees of these platforms - not owners of specific copies (e.g., MP3 files) of the music they listen to - and these platforms limit their users to using their platforms for personal, at-home use only. However, there are commercially available versions of online streaming platforms that do permit their use in public. For example, Spotify recommends using Soundtrack.

Soloists/ensembles require remix and master use permissions if they are creating remixes.

Using music as part of a routine can involve two different copyrighted properties: (a) the musical work, written by a songwriter and (b) the sound recording of the musical work, performed by a recording artist.

The first sale doctrine does not permit purchasers to remix sound recordings they have purchased. Soloists and ensembles that are remixing a purchased sound recording must obtain the music publisher's and record label's permission.

Soloists/ensembles must purchase the requisite number of copies if using purchased copies "as is" in public performances.

The first sale doctrine does not permit purchasers to make their own copies of CDs or MP3 files they have purchased.

If using a purchased sound recording "as is," soloists and ensembles should purchase as many copies of the work as required. Soloists and ensembles can also obtain compulsory mechanical licensing and pay the statutory mechanical licensing fee to music publishers and separately obtain the record label's permission to copy the sound recording as needed. [5] Mechanical licensing can usually be obtained from the Harry Fox Agency ("HFA").

 

 

DISCLAIMER: These materials are being provided for informational purposes and should not be used or interpreted as legal advice. Please consult independent legal counsel to address any specific legal issues you may have or if you want additional music licensing advice. Using these materials does not establish an attorney-client relationship.

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[1] 17 U.S.C. § 109(a).

[2] Impression Products, Inc. v. Lexmark Intern., Inc., 581 U.S. 360, 376-379 (2017).

[3] Capitol Rec., LLC v. ReDigi Inc., 910 F.3d 649, 652 and 656 (2d Cir. 2018); F.B.T. Productions, LLC v. Aftermath Records, 621 F.3d 958, 965 (9th Cir. 2010).

[4] UMG Recordings, Inc. v. Augusto, 628 F.3d 1175, 1177-1183 (9th Cir. 2011).

[5] 17 U.S.C. § 115.