RSSHow do I get the rights to use a song/music in my film?
Internet Filmmakers' FAQ
There's no doubt about it: Music Rights can be a confusing and complex subject. To further complicate matters, determining which rights, clearances and licenses that you - the filmmaker - need to acquire depends upon the source of the music used.
There are really only two sources for music used in film:
- Original music written specifically for your film
- Pre-existing music
Original music can be either underscore or songs. Pre-existing music can include both popular songs or canned" library music.
Copyright
Copyright law is complex. As a composer or songwriter [or filmmaker] you should have at least a basic understanding of copyright law.
A copyright refers ownership. It is a property right comprised of a set of legally enforceable privileges granted by law to creators of artistic works such as scripts, songs and recordings.
- Musical Works - including songs with lyrics
- Sound Recording
Musical Works - In the case of songs it encompasses the words and music. As with a script or any other intellectual property, the creator of a work automatically owns all copyrights in that work. However, these rights are transferable. The copyright is generally divided into two equal halves: one-half owned by the Publisher and the other by the Composer(s) and/or Lyricist(s). Each half is considered 100%, resulting in a total copyright of 200%. The Publisher controls the copyright.
Sound Recording - The term "Master Recording Rights" or sound master refers to the copyright in a recording itself as distinguished from the copyright in music and/or lyrics. It encompasses what you hear: the artist singing, the musicians playing, the entire production. In the case of most pre-existing music, the sound recording copyright is owned by the record label.
When commissioning an original score, the producer will usually want to own these rights. Whereas with pre-existing music, you must determine who has ownership interests in each song and then license the appropriate rights.
Pre-Existing Music
Synchronisation License - A synchronisation or "sync" right involves the use of a recording of musical work in audio-visual form: for example as part of a motion picture, television program, commercial announcement or music video. Synchronisation rights are licensed by the copyright proprietor (usually the music publisher) to the producer of the film or video.
In their book, "Producing, Financing and Distributing Film," authors Baumgarten, Farber and Fleischer caution:
"This should include a theatrical performance license for the US, since in this country only the music publisher grants the right to use the copyrighted music in movie theatres. The balance of the performing rights are cleared by the performing rights societies [BMI, ASCAP, etc.]. They license television, other public venues exhibiting the film, and theatrical exhibitors overseas."
How much should you pay for a "sync" license? According to Jeffrey Brabec, Vice President of Business Affairs for Chrysalis Music Group:
"There are no hard and fast rules in this area, and anyone who advises that there are lacks experience. The fees are negotiated in the context of each individual film.
The synchronisation fees charged by music publishers are usually between $12,000 and $35,000 (with the majority being between $15,000 and $30,000) but can be lower if the music budget is small or higher if the song is used several times in the motion picture."
Master Use License - It should also be mentioned that record companies normally charge between $12,000 and $50,000 for the use of existing master sound recordings in a motion picture. Depending on the stature of the artist, the length of the use, the music budget and how the recording is being used, these fees can be more or less.
Of course you can always make a deal with the local garage band down the street. They might be willing to let you use some of their songs for cheap, or even just for the credit. But you can forget about using any of Celine Dion's latest hits for free.
Another alternative is Library Music. Many good libraries exist with a wide variety of music available for licensing. Rates vary from a few thousand to less than $100 per use. As with most things in life, "You get what you pay for!"
The important point to get here is this, to license the use of pre-existing music for your film you will need to negotiate a Sync License from the publisher. This will give you the right to re-record the song and then use it in your film. It does NOT however allow you to use any pre-existing recordings of that song. For this you must negotiate a separate Master Use License with the record label or other entity that owns the sound recording rights and the artists and musicians that performed on that record.
Is all of this really important? Consider this, failure to secure and properly document the acquisition or licensing of all of these rights may prevent you from securing a distribution deal for your film. It's important!
If you're thinking about a soundtrack deal you should also be thinking about AF of M Re-Use Fees that may be due the performers on the recording.
Commissioning Original Music
As mentioned, to acquire the rights to use pre-existing music you must determine who has controls them (usually the Publisher) and then license the appropriate rights. However, when commissioning an original score, the producer will usually want to own these rights.
Work for Hire: In his book, "Contracts for the Film & Television Industry," attorney Mark Litwak states, "The agreement between the parties will determine whether the artist is deemed an employee-for-hire or an independent contractor, which in turn will determine who the author is for copyright purposes. The producer will usually want the work to be considered one that is "made-for-hire" so that he automatically owns the copyright. The composer will be entitled to a fee for his work and [performance] royalties."
Composer's Royalties - Usually, the production company will grant back to the composer the non-dramatic ("small") performing rights in the music. This will enable the composer to license these rights to a performing rights organisation and to then collect the composer's share of royalties from public performances.
Agreements vary, and composers will often retain the publishing on their music if they are employed by a medium-size or small film production company. This is solely a matter of bargaining and no rule of thumb is applicable. In summary, it is absolutely essential to acquire the appropriate rights to all music used in your films. A qualified Music Supervisor or Music Clearance house can help you regarding pre-existing songs. These rights will also need to be part of your negotiations with your underscore composer. By planning carefully, you can greatly simplify this important part of your film production and get the best music possible for your film.
I discuss these and related subjects in more detail in articles that I publish periodically in my film/TV music newsletter, MuseNews.
References & Further Reading
Music, Money, And Success: The Insider's Guide To Making Money In The Music Industry
Brabec, Jeffrey and Todd Brabec
Producing, Financing, and Distributing Film/a Comprehensive Legal and Business Guide
Paul A Baumgarten, Donald Farber, and Mark Fleischer,
The Musician's Business and Legal Guide (3rd Edition)
Mark Halloran, Englewood Cliffs
Contracts for the Film & Television Industry
Mark Litwak
This Business of Music: The Definitive Guide to the Music Industry, Ninth Edition (Book only)
Sidney Shemel and M. William Krasilovsky
You should also consider using a professional third-party organisation to make arrangements on your behalf. Licensemusic.com is the web’s leading provider of music for the film, television, advertising and interactive industries worldwide. LicenseMusic.com enables the audio/visual professional to search, audition, license and download pre-cleared music from over 175 record labels, artists, music publishers and production music libraries. The site offers a simple on-line solution for finding the right tracks for creative productions. This collection currently contains over 50,000 tracks online with hundreds of tracks being added to the site daily.
You can also try Tracks to Go, which licenses music to producers in Film, TV, Radio, and Corporate Communications. All tracks are from independent recording artists, are new and original, and may be downloaded instantly in broadcast quality format. Or alternatively, Primary Elements.