Is it allowed to use a copyrighted music track on a video, but without integrating the audio into the video?

Question

It's generally known that if you use a song to create a music video, you must have obtained a master use license to publish the track as a part of the music video, and also a synchronization license to synchronize your video with the music.

However, what happens if you make a music video using the song, and then you remove the audio from it when publishing? That way, to view it as intended, the viewer will need to obtain a personal license for the music, for example from a streaming service, and start the music track at the same time as the video starts. The video metadata could point viewers to ways to legally listen to the song, and that it is recommended to view the video with the audio in the background.

What license, if any, would this usage require? My intuition is that this still requires the synchronization license, as the video is still synchronized to the audio, it's just that they're stored separately. On the other hand, an argument could be made that a sync license is made available for a specific recording while this video works with any cover version.

I'm interested in answers both specific to the youtube environment as well as for general distribution.

Answer 1

Copyright right prohibits the creation of derivative works as well as copies of copyrighted material.

This video might be a derivative work, but the mere timing of the video in line with the music probably isn't suggestive enough to by a copyright violation in the case of most popular music, because genre specific conventions about tempo (beats per minute) and meter are so strong in most pop music genres that the connection with the source song, based upon pacing alone, would be impossible to link to a source song and would be protected by the scènes à faire doctrine (which is a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre).

If your source song has a very distinctive collection of tempos and meters, such as Bohemian Rhapsody, or perhaps its Maori language cover, on the other hand . . . you might have a problem.

So, usually, to cross the line over into being a derivative work, the content of the music video, and not just its pacing, would have to establish the connection (e.g. visuals that match the content of the lyrics at each moment of the song).

Ultimately, of course, the answer the question of whether a work is an infringing derivative work, or is just a similar work whose similarities are due to genre conventions, or is protected by the fair use doctrine, is more art than science.

The set of pairs of works for which you could claim an infringement plausibly enough to overcome a motion for summary judgment in a court case and get to a jury to make a decision on the merits, is much larger than the set of works which a jury would actually find to be infringing. The less open and shut a derivative work case is, the less likely it is to be the subject of an infringement suit, but people are motivated to bring infringement suits for reasons that go beyond economic rationality and the strength of the case on the legal merits.

There is a large gray area and how potential infringements in that area are handled in practice is subject to all sorts of complicated, context specific considerations.

I was approached once to bring a somewhat similar infringement case, and declined to do so, in part based upon legal analysis, and in part, based upon gut feeling. Ultimately, another lawyer took on that case and lost.

Answer 2

Disclaimer: I am not a lawyer and the advise provided is from independent research and past knowledge.

Answer
If there is no copyrighted music present, the video will not be affected by the Digital Millennium Copyright Act (DMCA), since the only content present is a dance. You are also permitted to use the name of a song in the title of your YouTube video (See Ref 1). However, directly encouraging your audience to play the specific music with the video, through separate music streaming applications, is a legal grey zone.

Don't write:
Music Video for "Song Name". Play it together at the same time with streaming
Which will tell the audience to bypass licensing by using a personal license with a music streaming account.

To stay safe, in the description write something like:
Music Video for "Song Name"; meant to be played synchronously.
Which will tell people that the video was designed to be played at the same time, without instructing the audience to play any music.

The key difference is that by removing "with streaming" you are simply stating the intended way to enjoy the video rather than telling them to play a specific piece of music with the video.

References and Additional Links:
Ref 1:
https://www.thelaw.com/law/are-song-titles-lyrics-protected-by-copyright-or-trademark-law.317/

Copyright law provides exclusive protection to someone who creates an original work of authorship that is fixed in a tangible medium of expression. What does that mean to people who don't understand legalese? It means that the thing you create must be:

• Some type of creative expression (such as a painting or song) which is;
• Sufficiently original and independently conceived by its creator that is;
• In some permanently stored format so that it can be reproduced (such as a painting on canvas but not a design drawn in water which is only visible for a moment.)

Song titles generally don't fall within the protection of copyright law since most are not sufficiently original or independently conceived by the artist. Are phrases like "born to run" or "on the road again" sufficiently original so as to deserve legal protection?

Ref 2 (Derivative Works):
https://www.legalzoom.com/articles/what-are-derivative-works-under-copyright-law