BY BOB LABATE and PETER STRAND
The 10th Annual IFP
Midwest Independent Filmmaker’s Conference provided an opportunity
to discuss with film production professionals the little understood art
of putting music into movies. Our panel of professionals included: David
Carlson, president of Maestro-Matic, Inc.; JJ Hanley, producer of the
PBS documentary, Refrigerator Mothers; and Laurel Legler and David Thomas,
producers of the soon-to-be completed rock music documentary, MC5: A True
Testimonial.
Generally, music is the last major element to be added to a film, so a producer who is not familiar with the costs and procedures for acquiring music rights is in for a shock.
Obtaining Rights To Use Music For Movie Purposes
"Music" includes anything from classic songs released decades ago to "sound design," that is any rhythm or melody played underneath the dialogue for any period of time which sets a mood or a tone for the action on the screen. It may be original music composed just for your film, a local performer’s cover of a well-known tune, or snippets of well-known songs and well-known recordings.
Whatever type of music is imbedded into your film, before the finished film is delivered to the distributor, the film producer needs to obtain (or "clear") at least two rights for each piece of music—one for the song itself and one for the recording of that song. To complicate matters, the songwriter often is not the sole owner of the song rights and the performer of the song is rarely the sole owner of the rights in the sound recordings. Those rights are normally held by publishing companies and record companies, respectively.
To illustrate this point, let’s follow the clearance procedure for using a single song to be included in the soundtrack of a feature film. Keep in mind that this example IS ONLY for rights to one song in a feature film for theatrical release, and does not include rights for any other use, such as use the song on the film soundtrack album, which would involve additional contracts and additional payments.
Synch Licenses
Using a song in your film begins with obtaining a "Synch License" from the owner or owners of the song, which is often not the songwriter. A quick look at the back of the CD normally will provide you with the name of the songwriter or songwriters, or you can go to the Web sites of the performing rights societies which represent most songwriters in the USA: ASCAP (www.ascap.com); BMI (www.bmi.com) and SESAC (www.sesac.com). A search of these Web sites by song title or songwriter will usually provide you with the name and address of the entity with authority to provide you with a Synch License for use the song.
Practice Tip: The songwriter may not know who has the rights to the song, or there may be multiple songwriters for the song.
Now that you’ve identified the entity who can grant a Synch License, you must determine exactly what rights you want to acquire. Keep in mind that because everything is priced on an a la carte basis; the more specific you can be, the less the synch rights will cost.
So, before you contact the song rights owner, you must know things like: (1) the duration of your license for use of the song (five years is often the maximum you’ll get, but you want "in perpetuity"); (2) the territory in which your film is likely to be shown (world wide, or simply the U.S. and Canada); (3) the form of distribution of your film (for example, full theatrical release, cable TV, PBS or art houses); (4) use of the song in your film (such as opening title, featured, background or closing credits); and (5) any "first-use" restrictions which might apply to your film. You should also determine whether you want home video/DVD release rights for the song.
Practice Tip: Unless you have a lot of money to spend, obtaining music rights is a slow process, often taking months to negotiate and document. So, don’t begin the music rights clearance process two weeks before you are required to deliver your film.
Master Use Licenses
The second phase of "clearing" music rights is to obtain a license (generally known as a Master Use License) from the owner of the sound recording you want to include in your film. The sound recording is frequently owned by the performer’s record company and the first place to start is the CD that contains information on the performance you want in your film.
If the CD doesn’t contain the needed information, you have a number of other sources to check including: (1) the U.S. Copyright Office Web site (www.loc.gov/copyright/); (2) the Web site maintained by the performer of the song; (3) the Web site of the record company which released the CD or record album; and if all else fails, (4) the Web site of Amazon.com which often contains information on the company which owns the performance rights.
As with obtaining Synch Licenses, you should think about what rights you want to obtain (as set out above) before you contact the holder of the recording rights of a song. Again, these negotiation may take several months to complete, particularly if you are working on a budget.
Unless you represent a studio or a major production company, never, never try to get a better price for use of a song by telling the publishing company how much publicity you will provide for the artist by imbedding the music into your independent film. They’ve heard it all before and it may cause them to deny you the rights you want or to increase the price of the license.
Practice Tip: When obtaining rights for film use of well-known music, it is important to keep in mind that the owners of the music and performance rights you need may not be willing to license those rights to you, or the owners may demand far more money for those rights (sometimes hundreds of thousands of dollars) than you have in your budget. So, never tie your film to a single song or performer unless you are certain that you can obtain the right to use that music.
© 2001 Robert J. Labate and Peter Strand. This column is provided as a source of information and is not to be construed as legal advice or opinion. You may contact me through our firm’s web-site (mbc.com), via email at labate@mbc.com or, via mail, to Bob Labate or Peter Strand, McBride Baker & Coles, 500 West Madison Street, Suite 4000, Chicago, Illinois, 60661 312/ 715-5700.