BY BOB LABATE & PETER STRAND
In the last issue of December, we discussed who, what and how to ask for
permission to use existing music in your film. This column addresses how
to reduce the cost of music in your film.
The Song You’ve Just Got To Have
To use existing music in your film you must obtain a synchronization license from the songwriter (or publisher) and a master use license from the record company. Usually, the license fee for one will equal the fee for the other. In other words, if you pay $5,000 for the synch rights for the song, you will also pay $5,000 for the master use rights to the recording of that song. One way to save money is to re-record the song and avoid having to pay the master use license fees. For example, if you have to have "Imagine" in your movie, after you’ve obtained the synch rights for the song from the publisher, hire musicians to record the song for your use in the film. The cost of recording the song will likely be considerably less than obtaining master use rights from Capital Records/EMI. Unless you’ve just got to have John Lennon singing it, you’ve cut your music licensing fees in half.
The Original New Music Alternative
Hiring a Composer: If you are not in love with the idea of using specific existing songs and specific existing recording of those songs, consider new, original music created specifically for your film. In Chicago, and probably in any major metropolitan area, there are dozens if not hundreds of very talented composers and songwriters who would be more than happy to supply music for your film for very little money or even just a credit. Ask around at the editing houses, recording studios, music clubs and even coffee houses to find artists who are performing original music. You could also contact ASCAP, BMI, or The Recording Academy for referrals.
There are many advantages to using new original music: it is cheaper; much easier to secure; you control the documents (that is, you create and present your form contracts) and it’s one stop shopping as you can obtain the synchronization and the master use rights in a single document from a single source.
There are two basic ways to secure the rights to new, original music: First, you may engage or commission the composer to write and record the music under a "work-for-hire" agreement. This makes you, the production company, the author and the owner of the music and the sound recording. A work-for-hire agreement must be in writing, must specifically provide that the work is created as a work-for-hire and must be signed by you and the composer.
Practice Tip: If you’ve never used a work-for-hire agreement or employed a composer, you should not try to guess what needs to be in your agreement. Get help. Once your composer signs, you may be stuck with an agreement that doesn’t provide you with all the rights, waivers and representations you may require.
An Alternative: The alternative is a license granting you rights to use the music in the film. If you use a license, you should obtain at least the following rights: non-exclusive use of the music, in any and all formats throughout the universe for ever and ever amen (in perpetuity). The composer should represent that all of the music delivered is original and will not infringe or violate anyone’s rights. The license must be in writing and clearly state these terms.
Either type of agreement should also provide for delivery of the master sound recording in whatever format you need.
Plan Ahead
If music is important to your film, make the decisions about what music you are going to use as early as possible. If you license the music, among other things, you need to decide:
(a) how much to pay up front and how much "back-end" is available for music;
(b) how long you need to use the music;
(c) whether you want the music for uses other than your movie;
(d) what media you want to obtain use-rights for; and,
(e) where you intend to use the music in your film.
Negotiating at the 11th hour for music that "you’ve just got to have" undermines your leverage and will end up costing you more than it would if you had the ability to walk away.
Do not assume that music is available without charge or that you can use the music for film festivals without permission. Composers, songwriters and publishers can be very aggressive in protecting their rights (just as you will be in protecting the rights to your movie). An unauthorized use is copyright infringement, and the copyright owner could obtain an injunction prohibiting any exhibition or the use of your film pending resolution of the lawsuit. Plan ahead and save money.
© 2001 Robert J. Labate and Peter J. 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.