by Steven Ascher
Maybe you’ve had this experience: You know a song that would be perfect for your movie. You scurry around, trying to get permission to use it. After lots of leg work, you contact the rights holders and then wait. For weeks or months. Eventually, you hear that the song is not available, or, if it is, the fee happens to be tens of thousands of dollars more than you have in your bank account. Welcome to the world of music licensing.
Clearing music is one of the thorniest jobs a producer can do. It usually requires extensive research, long delays, and complex negotiations. If you ever have the experience of trying to clear many songs for a movie, you’ll probably never want to do it again. Many filmmakers prefer to hire a music clearing service that can shortcut the process with their network of contacts. If you want to use a pre-existing recording, you’ll need to obtain permission to use the musical composition, as well as permission to use the particular recording of it. Often a publishing company controls rights to the composition and a record company controls the recording itself. Sometimes filmmakers can’t afford the recording if it’s by, say, a famous rock star. They may license the rights to the composition and get someone else to perform the song. If you find a song by a lesser known band, they may give you a good price as a way to get exposure.
To secure rights to a composition, start by contacting the publishing company. Usually the printed material with a recording indicates which performing rights society the publisher belongs to; these include ASCAP (www.ascap.com), BMI (www.bmi.com) or SESAC (www.sesac.com). If you don’t know which one handles the song you’re interested in, you can do a search on these sites.
To include a musical composition in your movie, you need synchronization or sync rights—so named because the music is synchronized to the picture. To perform the music in public, you need public performance rights. In the United States, public performance rights for theatrical films are generally included in the deal you make for sync rights; you don’t have to pay for them separately, but make sure they’re included.
For movies that are broadcast on television, the broadcaster usually obtains the public performance rights. If you want to put out a sound track album from the movie on CD or other format, you will also need mechanical rights. If you plan to make significant changes to a song (say, to alter the lyrics) you may need to negotiate adaptation rights. Some composers or publishers won’t permit such changes.
If you want to use a pre-existing recording of the song, contact the owner of the recording—usually the record company (look online or on the sleeve of a CD for the address). You’ll need a master use license to use the actual recording (performance) in your movie. You should also ask the record company if any reuse fees are due the performers on the record. At one time, you would have also needed to arrange to get a copy of the master tape in order to have a high-quality audio dub. Today, you can get the audio recording itself from a consumer CD or other digital format.
Negotiating the Rights Package
For the classic situation of trying to clear a recording by a musical artist you like, you will be requesting a sync license with public performance rights from the publisher and a master use license from the record company. Both of them will ask you to submit a written or online request that details the nature of your movie, how you plan to distribute it, and the way the music will be used. You’ll pay more if the song is used under the movie’s titles or otherwise featured; you often pay less if it will only be background music in a scene.
How the movie will be distributed (by which media), where it will be shown (in which territories), and for how long (for what term) also affect the price of the license fee. Big-budget feature films generally clear music rights for all media (theatrical, broadcast, and free cable TV, pay cable TV, home video, digital delivery and formats not yet invented) in all territories (domestic and foreign) in perpetuity (forever). This buyout of all rights is by far the most desirable in terms of simplifying business arrangements. However, you may not be able to afford it. Getting only the rights you need is usually cheaper. For example, students often make a deal to acquire just film festival rights. Or you might get nontheatrical rights (often including screenings in institutions like museums and universities); or theatrical rights to art houses but not first-run movie theaters. You can renegotiate a more extensive rights package later. Some rights holders will offer only a limited (say, five-year) term. In some license agreements, the term for home video is “in perpetuity,” but an additional royalty payment is made per DVD unit sold. The rights holder will usually have a standard contract for you to sign.
As technologies change, there can be uncertain areas of coverage. For example, video-on-demand (VOD) could be thought of as relating to cable TV distribution, digital streaming and home video distribution. In this time of transition, not all rights holders will categorize it the same way.
Keep in mind that acquiring rights is a negotiation. The rights holder will name a price that may take your breath away; then it’s up to you to come back with a lower price. Sometimes they’ll consider it, sometimes not. If you’re poor and struggling and working on a worthy project, they may make a special exception. If you’re too poor (or not part of a reputable organization), sometimes they won’t even talk to you—it’s just not worth their time. If you’re negotiating with several rights holders and can find one who offers a lower price, sometimes you can get the others to agree to a lower price too. Often this is done on a favored nations basis, which means that for the deal to go through, no one is favored, all parties must agree to the same price. One advantage of using a music clearing service is that they know whom to negotiate with and the standard rates being paid for licenses. You may or may not be able to bargain for a better deal on your own.
Some public broadcasting entities, such as PBS, have blanket agreements and compulsory licenses that may allow you to use music without clearing it with rights holders. This applies only to the television broadcast. You may still need other rights if the movie is shown elsewhere.
Even if the licensing process goes well, it can take months. If a song is integral to the movie (say, if a character sings it), be sure to start as early in preproduction as you can. Increasingly, music publishers and record companies are using online tools on their websites to automate and streamline the process of requesting and paying for a license.
After the movie is done, you must prepare a music cue sheet, which details which compositions you used, the performing rights society associated with it, and how the music appears in the movie. This is essential for all parties to collect proper royalties.
To avoid many of the rights issues mentioned above, you can use prerecorded music from a production music library (also called stock music). Numerous library collections are available online and on disc with selections in many styles and arrangements. This music is packaged specifically for reuse. A library of stock music may be purchased or leased for a period of time by a production facility or individual tracks may be purchased and downloaded on a laser drop basis (what used to be called needle-drop, which is a continuous section of a recording used once). The rights for the piece are provided with the fee.
Having an original score written for a movie avoids most of the headaches mentioned above. When producers have an original score composed, often the producer will own the rights to the music, in which case the music is considered a work for hire. If, as producer, you own the music, you’ll want to set up a publishing entity and register it with one of the performing rights societies (see above) to collect royalties. Sometimes the composer will lower his or her fee in exchange for retaining some or all the music rights, in which case the producer must have a license from the composer to use the music. If the movie is shown widely on television, or in non-U.S. theaters, there can be sizable royalties paid to the holder of the rights. The composer will receive half the royalties regardless of who owns the music.
Steven Ascher is an Oscar-nominated filmmaker whose acclaimed work includes Troublesome Creek (Sundance Grand Jury Prize & Audience Award) and So Much So Fast – both made with his wife Jeanne Jordan. Their new feature doc is Raising Renee. He is author of The Filmmaker’s Handbook: a Comprehensive Guide for the Digital Age (with Ed Pincus), a bestselling text that the Independent calls “the bible.”