Music Rights Unveiled

A Filmmaker's Guide to Music Rights and Licensing

Brooke Wentz, Maryam Battaglia

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138673304
• eBook ISBN: 9781317203070
• Topic: Media & Performing Arts
• Subtopic: Film & Video

Music Rights Unveiled provides an inside look at the complex world of music rights for film and video and includes step-by-step guidance to navigate these tricky waters. Authors Brooke Wentz and Maryam Battaglia share their decades of expertise in this user-friendly guide, designed specifically with filmmakers and producers in mind. The book provides a brief history of the pricing of music in film, television and digital media markets, and explains the process by which music is licensed or acquired for films, highlighting pitfalls to avoid and strategies for success.

Further features include:

• A discussion of new media platforms and the intricacies of the rights needed to use music on those platforms;
• Tips for working with key music staff on a production – the Composer, the Music Supervisor and the Music Editor;
• An in-depth explanation of building a budget for the music component of your media project.

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1

INTRODUCTION

The Wild West, We Meet Again

Almost every piece of visual media today—from user-generated YouTube videos to TV shows or films—has a musical component. Music helps move an image along and creates the emotional foundation for all visual content. It can make tears flow and tensions surge. Almost everyone we know loves music. Yet, ironically, when most producers or directors work on a film or media production, music is generally thought of toward the end of a project, during an edit or in post-production. Many times it tends to be the last money spent when resources begin to get scarce or eaten away by other line items. As a result, music doesn’t always get the attention it deserves. But media creators who understand its importance relish the time when they can work with their chosen composer, or delve into their deep music catalogs, to pair the right vibe with an image.

One filmmaker made a documentary about a piano player who was blind, so after the edit and during post he put together a list of all the songs the protagonist had played in the film. With his list of songs, he needed to start getting permission from all the copyright holders. This process is called clearance or copyright clearance. However, because he could not gain permission from some of the copyright holders at a fee that he could afford, the songs had to come out of the production after he had locked picture. This is why it is important to think about your music sooner rather than later.

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Another filmmaker spent years following Neil Diamond tribute bands around the country. After viewing the film, and to the surprise of the filmmaker, Mr. Diamond did not grant him permission to use his compositions, so the film had to be shelved.

A similar project about a Johnny Cash tribute band also had to be placed on hold, not because of song rights but because the Cash estate strictly prohibits projects involving tribute bands. Now, these may seem like dramatic examples, but they are real and you can’t simply make a film about The Beatles and use Beatles songs without getting their blessing. It’s just not going to happen.

Music rights, or permission to use the desired music, can be difficult to comprehend. There are complex terms and relationships that come with securing permission. On top of the practical issues, the news media continue to enjoy reporting on the next infringement case, the next non-payment stream to an artist and the downturn in music industry sales. The media highlights the cat-like predatorial stance that record labels and publishers take to sniff out infringers. This makes media creators apprehensive and diligent about wanting to obtain proper permission to use a piece of music. They wonder, can I use a particular song or not? Who do I ask for permission? Is it okay to use 10 seconds of a piece of music? It’s on the Internet, so isn’t it free?

No! It is not free or okay to use. But don’t fret. That is why you are reading this book. We’re here to help you through the labyrinth! To help unveil the myths and truths, and decipher the protocol required to secure what you need in order to make it work for you. Take a big breath. Sit back, relax and we’ll walk you through it.

Music is an intangible asset. You can’t hold it, cradle it, mail it, or even burn it. So when a media creator wants to incorporate a song into their production, a license must be obtained and the copyright owner must review the request and negotiate a fee. This is why mediators, or negotiators, exist. The easiest way to explain the granting of permission for the use of a song is to compare it to taking a book out of the library. You must return the book by a certain date, in the same condition. Similarly, when renting a car you have to have a driver’s license, be a certain age and pay a certain price, and only then can you use the car for a select number of days, within a certain territory and for a specific fee. Licensing music is similar. You do not own the music. You are securing permission to use it in a specific territory for a specific term.

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The most perplexing part about music rights is that the ‘rental’ fee varies based on territory, term (the number of days you want to use it), and where you want it to go, i.e., in which media. Pricing is subjective. What costs one client a particular fee may cost the next client double the fee, or half.

Adding to the complexity, the music licensing landscape has become more difficult due to the plethora of media as a result of the advent of digital technology. In the past, when a song’s usage rights were being negotiated for a film, it would include traditional distribution forms such as film festival, theatrical, television, and home video. Now, there is also streaming, digital download, video-on-demand, Internet and Intranet, mobile/wireless and interactive, and the list goes on.

The protocol is time-consuming (it doesn’t have to be), the paper trail is heavy (due to the legalities of copyright law), the search can be tiring (hunting out the appropriate copyright owners) and the back and forth of negotiation is complex (attention to detail is a must!). It’s like walking a maze or solving a puzzle, so for those who like to speak this speak, the game can be exciting. There are a lot of pieces you have to put into place before you start the clearance work, and once they are in place the negotiating begins. You’ll make a lot of twists and turns before you get to the end. But strike up the band, because the result can be a beautiful thing. There is nothing better than the most perfect song matching an image, and securing a fee within your budget.

Producers today walk a delicate line to obtain song usage rights, and unfortunately there is no ‘blue book’ to look up previous fees. It’s the real Wild West of pricing: quotes for the use of music depend on what song it is, where it has been previously placed, whether the artist is ‘recouped’ or not (that is, is the artist’s account with his record label in the red or black?), the song’s market value, whether it is part of a premium catalog, where it is used in the production, whether there is a relationship between the director and composer, and numerous other variables. Trying to get a copyright owner to define a ‘standard’ price for something is almost impossible; no standard exists. The standard is what the buyer will bear and what the seller feels is the going price, dependent on previous fees. The music licensing process is based on protocol, and price depends on all the nuances of the particular circumstance of using that specific piece of music in that specific project. This is by no means easy to figure out, but this book will give you a toolbox of terms and strategies to negotiate your own deals and prepare you to speak intelligently to those who control the material you wish to use.

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When a filmmaker seeks to obtain music clearance for their film, ad, TV show or new app, countless factors are considered. The most important item is media: the more exposure a piece of music has, the more it will cost. So with the advent of the Internet, where you can post a video on your Facebook page and someone across the world can see it, the media spread is large. This increased visibility is what copyright holders feel entitles them to charge more. You may say, “Wait a minute, only 200 people are seeing my video on the web! So I should not be charged as much.” This is true. However, copyright holders assess the use based on potential reach, more than who will actually see it. This is exactly their job—to maximize the fee based on the media of exhibition. They reason it’s how many potential eyeballs could see it, not how many actually see it.

In this book we will give you hints on how to navigate the maze, and hopefully show you where the land mines lie. Through our real-life examples and interviews with our lovely colleagues, we hope this book will help unveil the intricacies of music rights clearance and give you a deeper understanding of the process by which the licensors allow for copyright use.

We hope to demonstrate the ins and outs of music rights and music clearance, and give you a look into the role of a music supervisor as well. An equally important goal is to introduce you to the voice of the licensors, so that you get a good sense of their point of view and how their roles work. The best negotiators are those who understand both sides. We want to prepare you for these conversations and equip you with all the information that can help.

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Together we have worked on over 500 projects in film, TV, advertising and new media. Our work at The Rights Workshop—a music supervision and clearance company—has been to finesse the delicate process of copyright clearance, and to secure the best prices for clients through understanding each detail of deal-making. We have had the opportunity to work on dozens of unique projects—lyrics on napkins, interactive karaoke machines, online instrument teaching games, virtual reality products, music in mobile sweepstakes, dancing flower-pots, and web-based talent shows. None is any stranger than another. We’ve written letters to artists in prison, sweet-talked lawyers who don’t use email, wired money to Cairo on a Sunday and performed other unimaginable endeavors, all to get songs cleared in time and within budget. It’s not easy. But it’s crazy fun, and especially rewarding when projects come to fruition. Our stories make for great cocktail chit-chat and once you delve into this world, you will have plenty of your own! Enjoy.

—Brooke and Maryam

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2

THE LAW

For Those Respecting the Law, We Salute You. For the Rebels, There Is No Such Thing as Free Music

If an artist of any sort—visual, music, film, written word—wants their work protected so that they can earn money from their art, it is highly recommended that they copyright the work. This is merely registering the art with the U.S. Copyright Office so that the artist is protected from future infringements, or, more simply, from anyone using their work. It’s easy to register your work by going to www.copyright.gov. An application for copyright registration contains three essential elements: (1) a completed application form, (2) a non-refundable filing fee and (3) a non-returnable deposit—that is, a copy or copies of the work being registered and ‘deposited’ with the Copyright Office. When the Copyright Office issues a registration certificate, it assigns as the effective date of registration the date it received all required elements in acceptable form, regardless of how long it took to process the application and mail the certificate of registration.

Once your music or art is registered, you are then protected under U.S. copyright law from anyone using or incorporating parts or whole amounts of your work into theirs. Yet the proliferation of digital and social media platforms has rendered copyright law a mainstream issue with much considered debate. In today’s world it is easier to poach someone’s creative efforts, so much so that it has become relatively common. Copyright topics in the news vary widely from ownership disputes, extensions (the length of time a copyright is protected) and catalog valuations and acquisitions to infringement cases. Copyright law is the foundation of everything examined in this book. Without copyright protection, the creative endeavors of writers and producers would have no financial value. They would not be able to make a living. Therefore, the main reason one needs to clear or get permission to use music (the process of which is commonly called music rights clearance) is to secure a formal, legal license to use the music, because someone owns the underlying copyright and expects the licensee to recognize that and pay for that use.

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While the breadth of copyright law is exhaustive and nuanced, the focus here will be on the purpose and basic principles that govern the issue. We’ll discuss the historical origins, meaning and terminology behind commonly used phrases as well as the monetary value associated with copyright use.

PURPOSE

Copyright protection is instituted to encourage people to keep producing creative work for public consumption. Creative output is maximized when creators can be rest assured their blood, sweat and tears are respected and protected, and not stolen. Copyright is an acknowledgment of authorship and ownership. With protections in place, creatives can keep recording, writing and publishing with peace of mind.

From a user’s perspective, copyright law serves an important role as well. Companies and media creators are able to use and incorporate the creation of others in their creative endeavors. More often than not, a producer comes to us having built his entire vision for a scene around the emotional elements of a piece of music. Creativity breeds creativity, so when an app developer is engineering a new game, or a filmmaker is envisioning a scene inspired by the work of another, the developer or filmmaker is able to incorporate that work into theirs and make something very special for their consumer and audience. Despite popular opinion, copyright law is not meant to hinder creativity. Quite the opposite; it’s intended to inspire it.

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HISTORY

Like most of our legal system, U.S. copyright law is based on British law. The idea originally was to protect people from the copying and reselling of published writings. In 1790, Congress enacted the first U.S. copyright statute, which was authorized by a clause in the Constitution that specifically protected works of authorship. This grew out of a need to protect the creators and writers of books, text and speeches, and orators. ‘Works of authorship’ expanded to include visual arts, motion pictures, photographs and songs. With the invention of the phonograph record, sound recordings were also included, and, most recently, digital content can be copyrighted. As of this publication, we live under the copyright framework est...

Table of contents

• Cover Page
• Music Rights Unveiled
• Title
• Copyright
• Dedication
• Contents
• Foreword
• 1. Introduction: The Wild West, We Meet Again
• 2. The Law: For Those Respecting the Law, We Salute You. For the Rebels, There is No Such Thing as Free Music
• 3. Background and History: When Synchs Outshine Soundtracks
• 4. Music Supervisors: Every Project Can Use a Little Music Supervision
• 5. Finding Music: A Community of Composers, Libraries and Representatives
• 6. The Process of Securing Rights: A Step-By-Step Guide to Avoiding Mistakes, Because What You Don’T Know Can Cost You
• 7. Brand Personality, Identity and Recognition: People Rank Music as More Difficult to Live Without Than Sports, Movies and Newspapers
• 8. Digital Media and Digital Platforms: Welcome to the Digital Era in All Its Forms
• 9. For the Artist: There is a Musician in All of Us
• 10. Conclusion: Parting Words of Encouragement
• Glossary
• Index