A striking feature of the 2018 Pyeongchang Winter Olympics was figure skaters performing to music with lyrics. Until this year, for as long as ice skaters had been competing at the Olympics, the audience had been prepared for them to be accompanied by orchestral or other instrumental music. There have been some interesting pairings: Tonya Harding skating to the theme from Jurassic Park in Lillehammer in 1994, an Uzbek skater giving his all to an instrumental of “Tutti Frutti,” and two skaters in the pairs division choreographing their spins to the overture from Jesus Christ Superstar in Sochi in 2014.
The transition from classical music to pop has been underway for years. A survey of the men’s free skate at Sochi found that only seven of the twenty-four skaters chose classical music, almost as many chose movie soundtracks, and the rest went with a “classical crossover,” which is an instrumental version of a pop song. In a sport where music can have a significant impact—drawing an audience in or pushing them away—this is a stark departure from tradition.
However, the somewhat jarring Olympics tradition of juxtaposing athleticism and grace with instrumental versions of popular songs you might hear in the grocery store came to an end in Pyeongchang. After the Sochi games in 2014, the International Skating Union (ISU) decided to shake things up (or shake it off, Taylor Swift?) and began allowing skating to music with lyrics. This is not at all surprising given the demographics of the skaters, who are much more likely to enjoy “Single Ladies” than “Clair de Lune.” Pleasing Generation Z and millennial skaters, however, was not the main goal of the rule change; rather, the ISU wanted to appeal to younger audiences who tune in to watch the Olympics and other major figure skating events.
The result has been to roll over Beethoven and Tchaikovsky and substitute Ed Sheeran, Coldplay, and Oasis (who covered the Kansas tune “Dust in the Wind”). Beyoncé made an appearance, at least musically, in the program of Maé-Bérénice Méité of France, and the Beatles impossibly reunited in a medley for Matteo Rizzo of Italy.
In addition to opening up a market for skaters-turned-DJs to edit music and choreograph it for skating routines, this development raises an important question: how do the artists get paid for the use of their material? Fundamental questions of copyright law are implicated because one of the six rights granted to owners of copyrighted material—the right of public performance—is being exercised whenever the music is played.
Owners of a copyrighted work are granted five exclusive rights: the right to reproduce the work, the right to prepare derivative works, the right to produce and distribute copies, the right to publicly perform the work, and the right to display the copyrighted material. The copyright owner may allow, or refuse to allow, others to exercise those rights. Permission to use a copyright work in one or more of the five listed ways is granted through what is known as a license. Generally, a license, for which a fee must be paid, is necessary any time copyrighted music is used in a broadcast. Depending on how the work is being used, multiple licenses might be necessary. Under current laws, music composed, and songs written, as long ago as 1923 could still be protected under copyright. This means that most music created in the last century is likely to be protected under copyright and if used in broadcast programming, at least one license must be obtained and depending on the type of use, a special license might be necessary.
Licensing of sound recordings can get complicated. The use of recorded music implicates two copyrightable elements: the copyright to the underlying musical composition (the notes and lyrics written down on paper) and the copyright to the particular recording or version of the song that is being used (which is fixed in a tangible medium such as a CD, digital file, or other recorded medium, and which is often referred to as the “sound recording” or “master recording”). For example, older classical music, the underlying musical composition may have entered the public domain (depending upon when it was written), while a more recent recording of the work by an orchestra may still be copyright-protected. More often than not, the holder of the copyright in the musical composition is controlled by a music publisher, while the copyright in the sound recording is usually owned by the record label. Depending on who holds the copyright and how the music will be used, a license may need to be secured from the music publisher, the record label, or both.
Public Performance Rights
As previously noted, one of the rights granted to a copyright owner is the right to control the public performance of their work. If a musical composition is protected by copyright, a license must be obtained from the songwriter or publisher before each broadcast of a recording of the composition. A public performance pertains to any performance of copyrighted material and can include, but is not limited to, broadcasting music on radio, live performances like concerts, performances recorded for film or television, and playing copyrighted work over stereos in public spaces.
Songwriters and music publishers independently register with performance rights organizations (PROs), such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcasting Music Inc. (BMI), and the Society of European Stage Authors and Composers (SESAC). PRO’s serves an intermediary function by collecting royalties, between copyright holders and parties who wish to use copyrighted works publicly. By registering with a PRO, copyright holders authorize the organizations to act on their behalf to grant the rights to use their songs to third parties. These organizations then contract with broadcasters, restaurants, and other businesses by issuing blanket licenses, which, for a fee, grant the rights to the organization’s catalog of music that they represent for a set period of time. PROs ease the burden of collecting royalties and pay artists out after taking a cut for operating costs.
When a blanket license is issued, the licensee must comply with certain tracking and reporting guidelines set by the royalty collection group. For example, the licensee may be required to turn in playlists for a certain period of time or report the set lists of shows played in its venue. The reporting criteria vary depending on who is using the music and how and which performance rights agency is involved. The fees for blanket licenses also vary wildly depending on how heavily the license recipient uses the music and how large an audience it reaches. Large radio stations may pay millions in blanket licensing fees, while very small venues and businesses may need to come up with only a couple of hundred dollars a year to get a license.
While blanket licenses typically cover the public performance of compositions, these licenses don’t cover all uses of a work. The use of copyrighted music in film, TV, video, or webcast productions requires what are known as synchronization rights. Synchronization rights refer to the right to use or reproduce music in conjunction with a timed visual image such as a film, video, television show, commercial, or other audio-visual production.
Synchronization licenses are typically secured from the composer, publisher, or music library. Permission from the record company—a master use license—also must be obtained if a specific recorded version of a composition is desired. Songwriters and publishers receive synchronization royalties when their song is used as background music for a visual production. A license for synchronization is put in place to ensure payment to copyright owners when their music is used.
Which License Applies to Olympic Figure Skating?
Fortunately for NBC, the Olympics qualify as a live event, so no synchronization licenses were required. NBC paid the blanket fee and a separate royalty for each performance of a song. This, more than any other factor, may explain how the Beatles, Beyoncé, Oasis, and other artists could be heard at the Olympics. If NBC had had to pay synchronization fees, it might have been prohibitively expensive. The cost of synchronization licenses for Beatles music, for example, runs into six figures.
This is not to say that the artists are left empty-handed. Eventually their portions of the blanket fee and royalty payments will reach them through the performing rights organizations (such as BMI or ASCAP) they use to license their musical works. A greater benefit of an artist music being used in the competition is exposure to 19.8 million viewers—the number of people who watched the 2018 winter Olympic games. That kind of exposure is almost impossible to buy. Data from Amazon.com showed that some half dozen songs featured at the Pyeongchang games became much more popular among its users who stream music, which would also increase royalty revenue for the artists.
While NBC may appear to have the situation tied up with a nice bow, some pesky questions remain. Chief among them is what happens when NBC airs replays of ice skating, songs blaring. Does that still count as a live performance, or would a synchronization license be required? What about those who were at the event and streamed the performance via YouTube, for example, but paid no blanket license fee? What will happen to all of the unauthorized videos of ice skating, including the songs, that will inevitably pop up on YouTube? Let’s just say that although the games are over, NBC must still be grappling with these issues in the weeks to come.