Music Licensing / Photo Credit: FYI Music News
MUSIC LICENSING FOR A FILMMAKER –
SOME BASICS? (In the Entertainment industry.)
MUSIC LICENSING FOR A FILMMAKER?
Filmmakers often feel so attached to a song that it
becomes a crucial and indispensable element of their story. A scene, or even an
entire film, can revolve around a single piece of music. What many directors
don’t realize is that the process of clearing that song can be very difficult
and expensive. Brooke Wentz, the music supervisor behind Kings Point, Bully and
Bill Cunningham New York cleared up some of the confusion and little-known
realities of music licensing during a recent Film Independent education event.
When to get permission
If you produce a movie or film, make sure to get
permission for any songs you did not write, recordings made by other people
(such as samples, karaoke tracks, or background tracks), and lyrics or music
notes if you show them. Licenses should be secured before you release your
film. Because of the complexity of these types of licenses, we suggest making
your request many months ahead of your release, and also having a backup plan
in case your request is denied. Reputable manufacturers will require proof of
licensing before they replicate your film. You do not need to license songs that
you wrote yourself or songs that you know are in the public domain.
How to get permission
It is important to note that underlying what most
people think of as a "song" is actually two components: the
composition (music notes and lyrics that make up a song, created by the
composers) and the original recorded audio (recording of musicians playing the
song, created by the artists). Often the composers and artists are the same
people, but not always. These song components can be owned separately by
different entities. For this reason, there are two types of licenses to protect
the two types of creations:
a) A mechanical license (audio-only) or
synchronization license (video) for the composer to protect the composition,
and
b) A master license for the recording artist to
protect the original recording. It's important to understand both components,
and both types of licenses when obtaining permission for a "song":
1) Composition (mechanical or synchronization rights)
The composition is the music notes and lyrics that
define a song. The rights to the composition are usually owned by the composer
or their publisher. Permission is obtained through a mechanical license
(audio-only) or synchronization license (video).
2) Recording (master rights)
The recording is a recorded performance of the
composition (song). The rights to the recording are usually owned by the artist
or their record label. Permission is obtained through a master license.
The licenses required for film (synchronization,
master, and print licenses) are custom-negotiated directly with the copyright
holder upfront and are quite complex.
The most important thing to know is that there are
two rights to every song. There is the person who wrote the song (who holds the
publisher rights, aka “sync” rights) and the person who recorded it (who holds
the “master” rights). To use this piece of music you need permission from both
entities. You can listen to a song like “All Along the Watchtower” by Jimi
Hendrix, but you may not know that the writer is Bob Dylan. To determine who
owns the rights to songs, the websites ascap.com and bmi.com are extremely
helpful.
Once you’ve determined who owns the publishing and
the master, you must contact them separately and ask for permission to use the
song. This can get tricky when there are a lot of songwriters involved. Katy
Perry’s song “California Gurls,” for instance, has five publishers. Therefore,
if you wanted to clear this tune you would need approval from all five of the
writers and on top of that you would need approval from Katy Perry. If one of
them says no, then unfortunately you can’t use the song.
What about YouTube?
By law, licensing must be in place for all of the
above scenarios, even on YouTube. Unfortunately, conflicting information about
who handles licensing on YouTube has led to widespread copyright infringement
on the service. Some consumers believe YouTube handles licensing for them; this
is only partially true. YouTube pays royalties to some publishers that have
agreed to a share of ad revenue in exchange for music rights. However, most
publishers have not agreed to this, and instead follow the more traditional
practice of requiring the individual to obtain synchronization licensing before
posting. The best way to know for sure if a publisher has a deal with YouTube
is to check with the copyright holder directly. Unsure if you need a license?
We provide answers through our Custom Licensing services.
Composer Agreements
The key terms of a contract between a film producer
and a composer are:
(i) The responsibility of the composer to record as
well as write the music
(ii) The fee paid to the composer
(iii) The time schedule
(iv) The
composer’s credit
(v) The composer’s compensation if there is a
soundtrack album
(vi) The use
and ownership of the music
Fees
In a normal agreement, the composer will do or
supervise the music production in addition to writing it. The filmmaker pays
the composer for this and sometimes pays for costs associated with production.
This includes studio time, engineers, mixers, arrangers, and recording
equipment rental. The composer’s fee may also factor in these costs as a
Package Deal.
Typically, the filmmaker pays the fee to the composer
in installments. The composer receives the first installment when signing the
agreement or “spotting”. This is when the production team screen the movie to
determine placement and type of music. They receive another when recording of
the score begins. They receive the final installment when all services are
completed and accepted.
The Package Deal
Package deals often occur with low budget movies. The
producer pays to compensate the composer and covers all recording costs. The
composers uses this money to pay for musicians, arrangers, studio time, and
rentals, and keeps the rest. If the composer goes over budget, they pay for the
costs of such overages.
However, package deals exclude certain costs that the
producer assumes. If the producer hires another composer to redo the score, the
producer must pay the new composer music licensing fees. The composer should
try to limit the right of the producer to demand changes after delivery and to
negotiate a “kill fee” in case the producer rejects the score.
Package deals often work well when a composer is
using few instruments and relies on synthesizers and her own equipment and
recording facilities.
Work for Hire vs. Exclusive License
A large part of composer agreements is the section on
ownership rights of the music. Typically, the producer and composer agree in
signed writing that the music the composer creates and records is “work for
hire” and the producer owns all rights to the music. If it is not deemed work
for hire under federal copyright law, then all rights are transferred to the
producer.
A work for hire contract gives the producer total
control of the music and the recordings. The producer can use or change the
music in any manner. They have the right to include the music in the trailers,
marketing materials, advertisements, and any other promotion for the movie.
The producer can also act as a music publisher and
label by licensing the music to third parties, even if these parties have no
connection to the movie. For example, the producer could license the music to
anyone that might want to use it in a commercial.
While the composer has no say in the use or the music
and won’t share in the profit from music licensing to third parties, they may
be entitled to compensation in at least one form, like public performance.
The share of profit typically divides equally between
the publisher and the songwriter. Though the filmmaker receives the publisher’s
share for the license, the composer keeps the songwriter’s share regardless of
who owns the rights to the music.
Cue Sheets
In the U.S., there is no public performance income
from movie showings in theaters, nor from distribution of DVDs or permanent
downloads. However, there are royalties from showing the movie on TV or
internet video on demand websites (e.g., Netflix).
Cue sheets log all music in a production and are the
primary means by which PROs track the use of music in films and TV. The
composer should be very careful to prepare and present these to his or her
performance rights organization (PRO) to ensure that he or she will be
credited. Without filing the cue sheet, the PRO will not compensate the
composer.
Other ‘Work for Hire’ Considerations
Work for hire deals are standard and usually
non-negotiable when a major studio hires composers. These major studios usually
pay large fees. An independent producer who offers a composer a more
financially modest offer will usually allow the composer to keep her music
rights or at least share in the income in addition to royalties.
If a producer cannot afford to pay a composer’s
customary fee, the composer may agree to a reduced fee. This allows the
composer to keep publishing rights. If the composer’s music is licensed, the
composer could negotiate to receive their songwriter’s fee and part of the
publisher’s.
1. For film festival rights, most songs can be
cleared at around $500 per side ($500 for the publishers, $500 for the master).
If you don’t have enough money in your budget to pay for all the rights up
front, you can clear only the film festival rights and add an option to get all
media rights up to two years later.
2. The fee is the same regardless of the duration of
the cue. If you use a song for five seconds or two minutes, it will cost you
the same amount of money. The only exception to this is if the song is used
over beginning or end credits.
3. The rate for a piece of music is negotiable! Most
filmmakers don’t know that they can offer a lower price, or if the artist likes
the subject matter of the film, they might offer a better rate.
4. If you think a song is in the public domain,
double check. “I had a client who thought ‘My Sweet Lord’ was in the public
domain,” Wentz explained. “I said ‘Nope, I’m pretty sure that’s a George
Harrison song.’”
5. If you’ve contacted the publisher and masters and
have not heard back from them, this does not mean an approval. It might be
frustrating if they are not getting back to you, but you have to keep pushing.
If you do not clear the rights for a song, you could receive a “cease and
desist” letter from the rights holder which could incur fees.
6. If you are doing a music documentary, you must
make sure you can secure the rights beforehand. If the estate or the artist is
not on board you will not be able to use the music. Many deceased musicians’
rights are owned by their spouse or ex-spouse—or both. Certain songs might
never be clearable just because of inner conflicts that have nothing to do with
you or your movie.
How to Acquire Music for Films
By: Jeffrey and Todd Brabec
Frequently Asked Questions for Student and Independent
Filmmakers
Q: What Licenses Must I Get To Use A Song In My Film?
A: If you are using a pre-recorded song or another
pre-recorded piece of music in your film, there are two rights you need to
clear; that is to say, you need to get two different licenses to use the music.
Synchronization License: This is the right to
synchronize a song or a piece of music with your visual image. It must be
obtained from the copyright owner of the music, which is usually the publisher.
You can find out who the publisher is by using ASCAP's Clearance Express (ACE)
at www.ascap.com/ace. Songs that are not represented by ASCAP might be found at
HFA (www.harryfox.com). You will be provided with a contact at the publisher's
Business Affairs or Licensing Department.
Master Use License: This is the right to reproduce a
specific recording of a song in your film. You clear this right with the record
label who owns the specific recording you would like to use; see the liner
notes of the recording to find out which company this is. Alternatively, you
can get contact information for record labels by calling ASCAP's Film/TV
Department. You will be provided with a contact at the record label's Business
Affairs Department.
Q: Can I Use These Songs On My Soundtrack Album?
A: If you intend to use these songs on a soundtrack
album, you will need to negotiate additional soundtrack rights with the
publisher and record label as you negotiate the synch and master use rights for
your film.
Q: What Do License Fees Cost?
A: License fees are determined based on various
factors, including how the music will be used, the duration and number of times
the music will be used and where the film will be performed. In all cases, the
fees are negotiable and not all publishers and record labels charge the same
amount. Students working on films that are only shown within an educational
environment can often negotiate reduced fees. Independent filmmakers planning
to show their films at film festivals can also often negotiate a reduced fee
called a Festival Use License. These reduced rates are based on limited
screenings of the film. Once the film has been sold for theatrical release, the
fees will increase based on the significant increase in viewership and
potential increased revenues. It is best to negotiate this increased fee in
advance. Negotiating in advance for possible future performances in different
types of media (theatrical, TV, cable, internet, etc.) is often referred to as
a Step Deal.
Q: What Information Should I Include In My Request
For Music Rights?
A: Submit a synopsis of the film and the film's
budget.
Provide as much detail as possible on how you intend
to use the song: main title (opening credit) or end title (closing credit);
feature (song is the main focus of the viewers’ attention) or background (song
plays in the background of a scene); number of times the song is used, duration
and placement for each use.
Specify where your film will be screened. For
example, is your film a student film being viewed solely in an educational
environment? Or is your film an independent film, which will screen at festivals?
Ask how the fee will increase in the event of
possible future performances in different types of media.
If you are planning on securing soundtrack rights at
the same time, ask how that affects your fees.
Q: What Are The Consequences Of Screening The Film
Without Securing Music Rights?
A: U.S. Copyright Law provides that you can be sued
by a music publisher and/or record label, for using their property without
their consent. Considering that you will work more and more with publishing
companies and record labels as your career moves forward, not clearing the
rights in advance is not a very professional way of starting your relationships
with them. Clearing the rights and having step deals in place will also help
you in the event that a distributor is interested in buying your film. If your
rights are not cleared, the distributor is looking at an unknown expense tied
to your film, and this can be a deterrent in a distributor's interest in
acquiring an independent film.
Q: How Do I Find A Composer To Write Original Music
For My Film?
A: Music that is composed specifically for a film, as
opposed to pre-recorded music placed in a film, is the film score. You can hire
a composer to write this music for you. ASCAP works with film composers and
composer agents at every level of experience and can help you find a composer
appropriate for your film at your budget.
Q: What Do I Pay A Film Composer?
A: You will be paying a composer an up-front fee for
writing and recording the music for your film. You will negotiate this fee
based on your film budget, the amount of music required, and the film
composer's experience in the industry. Again, fees vary significantly, case by
case.
Q: Who Owns The Film Score?
A: Based on your negotiations with the film composer,
your Composer Agreement will spell out who owns the film score (that is, who
retains the publisher share of the music). This will either be the production
company or the film composer. If the production company pays the appropriate
composer's fee up front, it usually retains the publisher share of the music
while the composer retains the writer share. In this case, the production
company will need to set up a publishing company through ASCAP. When you call
us to do this, we can give you further detail. If the production company is
unable to pay the composer an appropriate fee up front (as happens often with
independent films but never with major releases), a composer will often
negotiate to keep the publisher's share of the music. Regardless, as a filmmaker,
if your film will have a broader release than at film festivals, you need your
Composer Agreement to give certain Broad Rights to the production company:
these may include worldwide synchronization; worldwide free, pay, cable and
subscription television; in-context and out-of-context television advertising
and film trailer use, including promos on other film videos; theater
distribution outside the United States; videocassette and videodisc rights; all
future technology rights whether now known or not.
Taken from Steve Gordon is an entertainment attorney
Retaining Your Rights
Since producers are usually not music publishers
looking to exploit music rights, they may offer a reduced fee to a composer. If
this happens, the composer grants an exclusive license for the music to be used
in the movie and other promotional materials while gaining the right to use the
music in other projects.
The producer may also negotiate the right to make a
soundtrack album for the movie. The composer agreement can go into detail on
compensation for the album. Alternatively, the producer and composer can
discuss this payment when they guarantee the album’s release.
If the composer keeps the music rights, the producer
will usually require that the composer cannot use the music in other media
without the producer’s written consent. This may last several years after the
release of the movie or signing of the agreement. After the agreed upon period,
the composer can place the music in any other movie, television program, or
audio-visual project, such as a video game.
How the royalties are paid
For film, royalties are paid upfront to the copyright
holder based on a custom-negotiated fee. When you hire us, we deliver your
request to the copyright holder, negotiate the fee, and present it to you. If
you accept, we collect the entire fee from you (which includes the royalties),
and then send 100% of the royalties on to the copyright holder. If you need to
reorder, a new license is negotiated. You have the option to follow all these
steps yourself or hire us for assistance through our Custom Licensing services.
Challenges of music licensing for film
All of the types of music licenses for film require
custom negotiations with the copyright holder. Music licensing for film can be
challenging because, by law, the copyright holders maintain total control of
their works. This means they can set any fee, take all the time they need, and
reject the license outright. For this reason, it is important to temper
expectations when licensing for film. Many factors affect the response,
including budget, use, and even the current workload of the copyright holder’s
processing department.
Other Usage Considerations
The agreement may set a limit to the amount of the
movie’s music used in an album. This is to prevent an album of the composer’s
music from competing with the soundtrack album. If a composer creates his or
her own album and uses the some of the movie’s music, there will usually be a
requirement to credit the movie.
Producer’s Acceptance
Before accepting the final score, the producer has
the right to request certain changes to the music. The producer also has the
right to not use the score provided that they paid the composer. This is known
as a “play or pay” clause and entertainment business deals use the clause
frequently.
Play or pay is usually non-negotiable for two main
reasons: it assumes the producer paid the full composer’s fee and it allows the
producer to reject the score if they feel it doesn’t fit. To keep the composer
and producer on the same page, they can agree that the composer will provide
part of the score and the producer can decide whether work should be continued.
If the producer decides against the score, the composer will receive some
agreed upon “kill fee” but allows the producer to use the music during the
trial period.
Credit
Composers should negotiate their credit carefully
because good credit can mean higher fees for future works. A good option for
credit negotiation is single card credit. This means that only the composer’s
name will appear on the scene during the main credit sequence.
Single Song Agreements
Getting music for movies can take different forms.
This last agreement is for composers who have written but not produced a
specific (single) song. The filmmaker wants the composer to record the song to
put in a music video for the end credits. In this deal, the composer has a
great deal of leverage because the song already exists. In this situation, the
composer can negotiate a license rather than work for hire.
If the filmmaker wants the composer to write an
original song, the contract would look more like a work for hire.
The Contracts
The first contract is a standard pro-film producer
form of agreement. It makes all the music a composer creates and records a work
for hire for the filmmaker. It also gives the filmmaker the right to demand
that the composer make an unlimited number of changes in the music without the
film producer paying more compensation.
The second agreement is much more composer-friendly.
It is not a work for hire agreement. Instead, the merely grants the filmmaker
the right to use the music in his movie and retains all other rights. The
composer agrees not to license the music for another full length film for a
period of time.
This contract also limits the time that the filmmaker
can demand changes to two days after the composer delivers the final mix. It
also provides for a “kill fee” if the filmmaker decides that the music
delivered by the composer is unacceptable.
The last agreement is for the recording of a single
song that the composer previously wrote but never recorded. Like the second
agreement, the composer grants a non-exclusive license to the filmmaker and
retains all other rights. In this case, the composer also allows the filmmaker to
use the recording in a promo video for the movie.
Sources, References & Credits: Google, Wikipedia, Wikihow, WikiBooks,
Pinterest, IMDB, Linked In, Indie Wire, Film Making Stuff, Hiive, Film Daily, New
York Film Academy, The Balance, Careers Hub, The Numbers, Film Maker, TV Guide
Magazine, Blurb, Media Match, Quora, Creative Skill Set, Chron, Investopedia,
Variety, No Film School, WGA, BBC, Daily Variety, The Film Agency, Best Sample
Resume, How Stuff Works, Career Trend, Producer's Code of Credits, Truity, Production
Hub, Producers Guild of America, Film Connection, Variety, Wolf Crow, Get In
Media, Production Beast, Sony Pictures, Warner Bros, UCAS, Frankenbite, Realty
101, Careers Hub, Screen Play Scripts, Script Doctor, ASCAP, Film Independent, Any
Possibility, Music Bed, Robin Hoffmann, Helena Keane, Twyman-Whitney, Lorena
Alvarado, Jeffrey and Todd Brabec, Easy Song Licensing, Steven R. Gordon, Esq.,
Ryanne Perio, Esq., Digital Music News,
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Music Licensing / Photo Credit: FYI Music News