MUSIC LICENSING FOR A FILMMAKER – SOME BASICS? (In the Entertainment industry.)

Music Licensing / Photo Credit: FYI Music News

MUSIC LICENSING FOR A FILMMAKER – SOME BASICS? (In the Entertainment industry.)         

Bruce Bisbey…please follow me at: https://dumbdogproductionsllc.blogspot.com or https://www.facebook.com/DumbDogProductionsLLC/ thank you.

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