Can I Use That “Free” Beat For My Commercial Release?

[HELPFULAW FOR THE INDIE ARTIST is a monthly advice column on legal matters pertaining to the music industry.  If you have a suggestion for a future article that you would like to submit to our columnist, entertainment attorney and indie artist Christiane Cargill Kinney, please feel free to leave them in the comments section below or send them to her at Christiane.Kinney@leclairryan.com.  You can also follow her on Twitter @musicalredhead for more helpful indie-artist tips.] 

Q:  My band found a website that allows artists to download free beats for use in their music.  I write poetry and want to use these free beats as background for our next commercial release.  Can I, and are there any red flags I need to watch out for?

A:  Great question.  Even if you do not use free “beats,” this discussion applies to anyone that wants to use free fonts, free stock footage, free stock images, or other free “fill-in-the-blank” stuff that you find on the Internet and hope to be able to use in your music, album covers, music videos, etc.

The quick answer to the question, “Can I use these ‘free beats’ in my next commercial release?” will sound like the ever-familiar cop-out: it depends.  And before closing my laptop and sending in what could be my shortest and most useless blog article yet, I will expand my answer in an effort to be a bit more helpful: it depends on the nature of the license being issued to you.

Now, some of you may be scratching your heads right now, thinking “I never signed a license, and the website says ‘FREE BEATS.’  What is she talking about?”  Well, U.S. Copyright law is what it is, and if you dig a little deeper, I’m sure you’ll find that most, if not all, of these “free” beats websites include certain “terms of use” – however simplified in form – that define the scope of a license, and identify under what circumstances you may use those “free beats” in your music.

The terms will most likely be tied to an action on your part, such as the act of downloading the beats, or the act of clicking on a box stating that you have read and agreed to the terms of use.  And wham!  A (potentially) legally binding contract that you may not have read or understood has been created.  This can really catch you off guard, kind of like hiring a back-up singer only to find out half-way through the show that she has Tourette’s.

Since the licenses offered vary greatly among different sites, I searched some of the top websites offering “free” beats, and broke down five of the most common terms appearing in their online agreements, so you guys would know what to watch out for in deciding whether the license arrangement being offered works for you.

In no particular order, and without identifying the companies I discovered in my search, here is what I found:

USAGE / LICENSE

Every agreement I reviewed offered a “limited license” arrangement, where you could use the “free beats”, but only under a limited set of circumstances.

Some terms were clear that you could not use any of the “free beats” for profit or commercial use, but you could purchase an exclusive or non-exclusive license in order to commercially exploit the beat.  If you find language to that affect, you know that the “free beats” can only be used on your next commercial release if you are willing to pay for them (at which point, they are really just “beats”).  This is basically the web equivalent of offering “Free Drink” coupons at an AA meeting; the “free” part is not all it’s cracked up to be.

Some sites allow you to use their “free beats” for commercial gain, but limit the number of tangible copies (e.g, CDs) that you can reproduce and sell.  Pay close attention to the language in these clauses.  A few were unclear, stating you could use the beat for “one commercial use,” but failing to define what they considered a “commercial use.”  They gave some examples that made it even more unclear as to whether both a physical and digital release were considered one “commercial use,” or multiple uses (thereby violating the agreement).  If the terms of use are ambiguous, it invites dispute, complete with litigation and attorneys’ fees, misery, and ultimately ending with you taking driving lessons from Thelma & Louise.

Now, it’s not all doomsday here.  The best terms I found offered downloadable beats for free, with an unlimited, non-exclusive license that allowed you to create a derivative work by adding your poetry to the beats, and to use your master recording commercially, in unlimited mediums, with unlimited distribution in any recording medium, and in for-profit performances or concerts.  Hooray!

The key here is to make sure you understand what is expected of you.  If you violate their terms by using the beat in a way that exceeds the scope of the license, you may find yourself standing in your doorway one day greeting a process server named Boscoe, sporting a Mohawk and an “I heart Mom” tattoo, and staring blankly at a bunch of papers he just handed you that say “COPYRIGHT INFRINGEMENT” on them.  And trust me, you do NOT want Boscoe at your door.

CREDIT AND OWNERSHIP

All of the agreements I reviewed state that the creator of the beat retains ownership, control, and copyright over the beat itself; hence the need for a limited license.

The terms also require the person downloading and using the “free beats” to give attribution, or credit, to the beat’s creator.  Some terms spell out precisely how credit is to be given; others simply request credit that is “fair and reasonable”.  Again, make sure to read the terms to see what works best for you and your band.  And remember – this is something that is expected of you; if appropriate credit is not given, Boscoe may come knocking at your door.

INDEMNIFICATION CLAUSE

(I just love legal titles, don’t you?)

Generally speaking, an indemnification clause provides that, if the company allowing use of their “free beats” gets sued for something you did with the beat, you are going to hire an attorney to represent them in court, and you’ll pay any judgment entered against the company if they lose at trial.  In other words, if Boscoe comes knocking on THEIR door, you are once again on the hook.

While it may sound harsh, the company has a right to want to protect itself from any liability that its users cause.  For example, if you write some horribly slanderous song about an ex-boyfriend and use it over a free beat, and your ex ends up suing you and the company you downloaded the beat from, it would be fair for the company to want you to cover them in that situation.  (And fair for you to want to write a sequel to the first song, but without posting it all over the Internet this time).

Not all indemnification clauses are built alike.  One clause I found was so overly broad that if the beat infringed on someone else’s copyright, they could argue that you are required to indemnify and defend the company in a lawsuit!  Of course, this is absurd, and I doubt that is what they intended when the contract was drafted.  Still, an appropriate indemnification clause should be limited to your artistic contributions to the beat, and nothing more.

The most favorable terms I found did not include any indemnification terms, and that is obviously your ideal scenario, assuming the rest of the agreement is a fit for you.

MODIFICATION CLAUSE

All of the terms I read contained a modification clause, where the company reserves the right to change its terms, and its license fees, at any time, effective as soon as they are posted on the website.  By continuing to use the beats after that, you are said to have agreed to their changes.

So, in theory, you would need to check the website every day for as long as you use the beat to make sure they didn’t change the terms of use, because if they did, and you are now in violation of some modification, hello Boscoe!  (Yes, in case you haven’t noticed, I am trying to coin a new “catch phrase” for getting sued for copyright infringement.  Let’s see if it catches on).

While all the contracts I reviewed included modification terms, not all clauses are equal.  Ideally, you want to look for terms that require the company to give you written notice of any changes.  My search of the top websites offering free beats did not reveal any modification clauses this favorable to the artist, but that doesn’t mean they don’t exist.

GOVERNING LAW / ARBITRATION CLAUSES

In a “governing law” clause, the company providing free beats pre-selects the court of its choice in the event of a dispute.  Basically, if anything goes wrong, this clause tells you where you’ll have to travel to resolve your dispute.  If the contract terms say Timbuktu, you better start calling your travel agent, or looking for better terms.

An “arbitration” clause means the parties are agreeing to present their case to an arbitrator, who will decide who is right and who is wrong under the law.  Often, arbitration is considered “binding,” and you may be giving up important rights, like the right to a jury, the right to discovery, or the right to file an appeal.

A FEW MORE WORDS TO THE WISE

Interestingly, the most arduous terms I found were in one of the shortest agreements.  Short does not always mean you are not giving up a great deal.  It just means they have less room to slip a “first born child” clause past you.

Also, many companies have a FAQ page which attempts to summarize their “terms of use”.  Be cautious, and never use the FAQ page as a substitute for reading the actual terms of the agreement.  There is a reason that attorneys are seemingly overly verbose in contracts (or legal blogs), and I find that any time a lay person attempts to “summarize” key terms, something pretty major is going to be left unexplained and misunderstood by the artist.  My favorite website of the ones I reviewed did not have any FAQ page and made no attempt to summarize its terms; it always re-directed you to the actual license agreement.  Smart.

So, let’s do a quick recap on what we’ve learned:

  •  Despite the title, “free beats” are not always “free.”  Generally, by downloading these beats, you are agreeing to a limited, non-exclusive license arrangement, and your ability to use the beat for commercial purposes will vary widely depending on the company you go with, and the terms they offer for their limited license arrangement.
  • Ideally, you want to avoid “terms of use” that are unclear as to the scope of the license, or terms that require you to indemnify and defend the company providing the beat (if possible).  Watch out for other red flag terms discussed above, and make sure you understand what you are required to do under the license arrangement.  Otherwise, you could find yourself in breach of the license agreement, and liable for copyright infringement.  (Tweet #Boscoe)
  • Don’t assume a short contract is written in your favor, and don’t rely on FAQ pages that attempt to summarize terms.  Read the FAQ pages for overall background information, then read every term, and make sure you understand before agreeing to be bound to them.

And, just in case you wanted a bit more legalese, let’s see some fine print.

© 2012 Christiane Cargill Kinney.  All rights reserved.  This Blog contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice.  Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney.  This Blog does not create an attorney-client relationship with any reader of this Blog. This Blog contains no warranties or representations that the information contained herein is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. Christiane Cargill Kinney is a Partner and Chair of the Entertainment Industry Team of LeClairRyan, LLP.  Oh, and say hi to your wife and kids, Boscoe!

[DJ image via Shutterstock.]



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