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Adventures in Music Licensing
by Steven Winogradsky
Copyright © 1998
One of the areas of music that is most misunderstood by the producers is the process of clearing and licensing existing music for use in a television or film production. This is a very specialized area of business affairs in the music community and, if not done properly, can cause great problems for the producer and studio releasing the project.
First, the legal background. When copyrighted music is included in a production, be it a television program, motion picture, home video or interactive media, there are potentially two (2) separate copyrights involved that need to be licensed: (1) the musical composition, owned by the music publisher; and (2) the specific recording of that composition, owned by the artist's record company. Licensing of these two copyrights is generally called synchronization (sync) rights and master recording rights, respectively.
It is possible to license sync rights from the music publisher without needing master rights from the record company if the music is created specifically for the production, such as being sung on camera or recorded by your composer. If a master recording is used, however, a sync license must also be obtained unless the recording is of a composition in the public domain. Because any one song may have several different recorded versions, the owner of the sync right will remain constant while the owner of the master will vary depending on which recorded version used.
Licensing the use of a copyright in copies of audio-visual works is part of the right of reproduction granted exclusively to copyright owners in Section 106 of the Copyright Act (Title 17 U.S.C.). Although the word "synchronization" is not mentioned specifically, Section 106 gives the copyright owner the exclusive right to do and authorize the reproduction of the copyrighted work in copies, such as television programs, motion pictures and home videos. "Synchronization" is the right to reproduce an audio representation of a copyrighted work with a visual image on film, tape or other visual media.
Many producers are under the mistaken impression that a small portion of a copyright may be used without obtaining a license. One often hears, "You can use X number of bars for free." This is totally false. Any part of copyrighted music reproduced in a production must be licensed. In this context, the "fair use" doctrine (17 U.S.C. §107) does not apply. Also, distinguish between a comedic use and a true parody, which must make fun of the work that is the subject of parody. Keep in mind also that the fair use and parody exceptions are part of United States law only. Other countries, who have adopted the concept of "droit moral", or moral rights, will not recognize an unauthorized use on these grounds. This could have a significant impact on a producer's ability to distribute product throughout the world.
The first step in licensing music into a production is identifying the copyright owners of the material. Since copyrights may be split, with ownership by several parties, it is essential to make sure that you locate all parties that have an interest in any particular song. With master recordings, generally there will be one record company to deal with, although sometimes the rights may be split by territory, especially for foreign artists. For example, one company may have rights for the United States while another may have rights for the balance of the World.
For compositions, the situation can be more complex. With the increased awareness of the value of music publishing, it is not uncommon for the interests of each writer of more recently created compositions to be controlled by separate publishers. For older songs, copyright terminations and reversions under both domestic and foreign copyright laws may cause a split in the ownership of the copyright. This may cause compositions to be split by percentage and/or by territory.
Many co-publishing agreements call for each party to administer (i.e., control) their own share of the copyright and to license and receive payment for that share directly. While each party has the right to set its own fees, independent of its co-owners, it is not uncommon for publishers to set fees on a Most Favored Nations basis with their co-publishers so that one interest does not receive a higher proportionate fee than another.
Keep in mind that many different songs may have the same title and that there may be several different recordings of the same song by various artists on separate record labels. If the recording to be licensed comes from a compilation or soundtrack album, there is a strong possibility that the record company that released the album does not control the recording but licensed the track from the artist's original record company. Be sure that you are researching and licensing the song and version that you intend to use.
Now the fun begins. It seems that everyone who works in production knows two things: (1) their own job, and (2) music. We all listen to the radio or CD player in our car and have a feeling of what we like to hear. Why not impose that on the film? Needless to say, the process of selecting music for a film is not that easy.
Without intruding on Music Supervision columnist Michael Rogers’ turf, there’s a right way and a wrong way to do music supervision. The good music supervisors know that they not only have to make good creative selections but ones that make sense from a business point of view. A song by the Rolling Stones may be the perfect song for a scene, but unless you have a large music budget, the song is out of reach. A good supervisor won’t even suggest such a song without checking with their clearance person to see if the song is obtainable. Why get the director excited over a piece of music he can’t have?
The same applies to temp tracks. More than one director has fallen in love with a temp score but has to face a harsh reality when it comes time to actually negotiate for the use of that music.
Knowing how this area of the business works can be crucial to the process. I’m not here to tell you that music clearance is brain surgery but it does require knowledge and experience to do it right. Often, prospective clients ask why I charge what I charge for doing music clearance. After all, isn’t it something they could do? My typical response is that, of course they could do it, if they had enough time to learn how to contact all the parties and what each parties policies are. What music clearance companies sell is their expertise. While a producer might need 10 phone calls to find out who owns a song, I might only need 3 calls (or frequently less). This might not seem important until the producer needs a song for the next day’s shooting, where my knowledge and contacts might be able to make the deal in time.
There are some publishers and record companies who have such onerous license terms that some producers will try not to use their music. For example, there is one publisher who has a clause in their agreement stating that it a material breach of the license agreement, subject to injunctive relief (such as enjoining the release of the film), if the publisher does not get 2 tickets to the premiere. While this may seem to be an easy requirement to fill, remember that the marketing department of the studio has its own agenda for the premiere and may not want or forget to invite the publisher.
Personal friendships can also be a hazard. About 15 years ago, Peter Bogdonovich was working on “Mask”. While walking on the beach in Malibu (so the story goes), he ran in to his neighbor, Bruce Springsteen. Thinking that the teenage boy in the film could be a Springsteen fan, Bogdonovich asked Springsteen for permission to use his recordings in the film. Bruce reported gave his okay and the film was edited and prints were struck. What Bogdonovich failed to do, however, was to ask permission of Columbia (now Sony) Records, who owned Springsteen’s recordings. Columbia not only asked for a high license fee but also required points in the film, an unheard of situation in a music licensing agreement. If you see “Mask”, note that instead of hearing music by New Jersey working class hero Springsteen, you’ll hear music by Detroit working class hero Bob Seger.
With all due respect to directors and producers, I have come to learn that no one piece of music will make or break a film. On a recent medium budget ($15 million) film I worked on, the director felt that he “had to, had to, had to” have a piece by Nino Rota. The publishing was owned by an Italian publisher, but was administered in the United States by one of the majors. Upon contacting them in March of last year, I was advised that the Italian publisher never responded to licensing requests and that my producer client should choose something else. After several months and several requests, I attempted to contact the Italian publisher myself. Again, after several faxes and phone calls over a period of time, there was either no response, or I was told that the owner of the company was frequently out of town on business.
Still, the creative parties did not want to give up. The music supervisor also made contact with the publisher and faxes were sent directly to the owner of the company. Finally, the day before the final dub of the film for release at the end of December, the head of the distribution company ( a major independent film company) called the Italian publisher directly, who advised his friend that, of course the song was available and could be licensed for $100,000.00. All of a sudden, nine months after we began, this piece of music was no longer that important to the film.
On this same film, there was a decided difference of opinion about the direction the music should take. One side wanted a jazz feel and we cleared a lot of music by Chet Baker. The other side wanted a more contemporary, R&B and pop feel. As previews were held and different versions of the film screened, no clear choices emerged. On the two nights before the premiere, 2 different versions were previewed. In the 3 weeks preceding the final dub we cleared 28 songs for the film. Luckily (for me, not for them), I was charging them by the song.
Anyone who has done music clearance for any length of time has similar stories. The key for producers is to work with supervisors and clearance companies who know their business. It will save you hours and hours of worry and redubbing, as well as your sanity.