By: Barry J. Heyman, Esq.
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Music is often a significant part of any television show or film. Production companies, who produce these audiovisual works, sometimes hire a composer to write the music, an artist to reproduce a previously existing song, or seek the music rights to use an existing recording. If the production company hires a composer, the parties enter into a composer agreement whereby the producer typically employs the composer on a work-for-hire basis, paying for services in exchange for full ownership of the subject compositions. In the event the production company hires an artist to reproduce a previously existing song, then the production company also uses a work-for-hire agreement to acquire ownership of the master recording from the artist, and then seeks permission from the writer(s) of the song or their representatives, often a music publisher. If the production company seeks to use an existing recording of the song then the production company must acquire permission from both the music publisher(s) and the owner of the sound recording, often the record company. Sometimes they may be the same entity; often times they are not.
It is important to understand that any piece of recorded music actually contains two copyrights: the copyright in the song, meaning the underlying lyrics and melody, (copyright symbol ©) and the copyright in the specific sound recording (copyright symbol (p)). Although two copyrights exist, obtaining the rights to use a preexisting sound recording may require permission from more than two sources due to the possibility of an underlying song being written by multiple writers represented by different publishers. The sound recording is seldom if ever owned by more than one entity. So a commercially recorded song written by three songwriters could conceivably require four separate grants of permission prior to being used in a television show, film, or video. If the underlying song or composition is old enough to have fallen into the public domain (written before 1923), then no permission is needed for usage of that copyright. If, however, that old song was recorded by a current artist, then the sound recording copyright would still be in force, and require permission from the owner, typically a record company, prior to being used.
Types of Licenses
In order to obtain the right from a music publisher to synchronize their song with a visual image, the production company will seek what is called a “synchronization license” (“sync license” for short) from each publisher. When using the sound recording owned by a record company, the production company will seek a “master use license” which allows the producer the right to use the particular sound recording in the film. In addition, if the production company plans to release the television show or film on DVD or for digital download, then the production company must also obtain a “videogram license” from the music publisher(s) which allows the production company to make and sell video copies of the television show or film that contains the publisher’s song. In addition, if applicable, performance fees may have to be paid by broadcasting companies to the music publishing company for the public performance of the song. These fees are collected and distributed by one of three performing rights organizations: ASCAP, BMI, or SESAC. Note that a master license differs from a sync license in that a sync license gives the license holder the right to re-record a song for use in a media project, while a master license gives the license holder the right to use a pre-existing recording of that song in a media project, in which case a sync license would also need to be obtained.
The Licensing Process
To find out the publisher(s) of a song, the production company can conduct searches on the websites of the performing rights organizations ASCAP, BMI, SESAC, or the licensing agency HFA. To find out the owner of the sound recording, the production company can look at the liner notes of the particular recording and contact that record label’s business and legal affairs department.
Next, if the production company is seeking to obtain the rights to use a preexisting sound recording in their production, he/she contacts the owner(s) of the song and sound recording and describes the context in which the proposed use of the song and sound recording will be used within the show or film, asks for a specified period of time to be able to use the song and sound recording in the program, and negotiates a fee. The record label will often accept the same deal terms that the music publisher and production company have negotiated.
There are no fees set by the Copyright Office or any federal or state agencies for these synchronization and master use rights. Everything is a free-market negotiation, with the customary license fee for each side (i.e., master and sync) ranging from gratis to several thousand dollars, and much more. There are a number of factors that the publisher(s) and record label takes into consideration in determining how much to charge to include the sound recording in a television show or film. Some factors include the specified period of time (e.g., 3 years, 5 years, perpetuity), the territory (e.g., US, worldwide), the type and scope of media rights being requested (e.g., free, basic cable and satellite television, all forms of television and home video, Internet – streaming and/or downloading, mobile, all media) and any requested options, the type of film (e.g., student, documentary, theatrical, independent or major studio release), the actual song being used (e.g., independent, current hit song, famous song), the duration of the proposed use (e.g., 15 seconds, 1 minute, 3 minutes), as well as the use of the song in the film (e.g., background, foreground, or in some special manner such as opening or closing credits). As the avenues for digital media exploitation continue to expand, producers often provide publishers with a menu checklist of options in addition to traditional usage clearance. A couple of examples include options with additional royalties attached for internet promotional streaming and video-on-demand advertising spots.
If the production company plans to make its television show or film available for sale on video or DVD, they have to negotiate and pay a fee for these videogram rights. Again, there are also no set fees for use of a song in a video or DVD. Music publishers may charge thousands of dollars for use of a song in a video release of a theatrical film. Sometimes the publisher will charge a “penny rate” which is tied to the amount of sales of the video. This rate can vary and is generally around 10 to 12 cents, but again there are factors to consider, such as the duration and type of use. Music publishers may also require a units-based advance against future royalties due. This advance is usually calculated using a range of 2,500 to 10,000 units.
It should be noted that because of the ever-changing technology, delivery methods, and devices, over the years, licensing music for television has taken on a new level of complexity and sophistication. When determining the type of media rights requested, the parties need to have the same understanding of those requested rights and whether for example acquiring rights to use music in a program which will be available for download to an iPad device is a computer requiring home video rights (which may include download rights) or a mobile device requiring mobile rights.
Production Music Libraries
The clearance of music rights can be somewhat difficult because a lot of time may be involved in obtaining the requisite approvals (including songwriter approval for certain uses), and then negotiating licenses for the song (all publishers) and possibly the sound recording. In addition, the financial expense of clearing and paying the license fees for commercially released music can be burdensome. As a result, when possible, many production companies seek to use library music (i.e., music specifically made to be used in television or film) or from companies that represent unsigned artists or bands that have all the rights in both their songs and sound recordings. With this kind of music, the rights can be acquired on a “one stop shop” basis, and the music is pre-cleared with set rates, precluding the need to negotiate the license fees. Some production music libraries include APM, KPM, Killer Tracks, and Pump Audio.
Understanding that production companies may be discouraged to seek clearances for commercial music, some music publishers and other rights representatives provide production companies with a catalog of “pre-cleared” songs (with also the master rights they may own or control), so that they can provide immediate permission. Consequently, if a production company has been provided with a catalog of “pre-cleared” songs, they may favor using such songs, not only for the above reasons, but often also due to time constraints.
Although a production company may be tempted to use songs and master recordings without clearing the requisite rights, they should be aware that this practice may lead to copyright infringement claims from the owners of such rights. Copyright owners may enjoin the use of their songs or recordings, and in effect, cease the exploitation of the television show or film. In addition, they may recover actual damages, profits made by the production company (and possibly others), or statutory damages, plus attorneys fees and costs. For willful infringement, statutory damages can run as high as $150,000 per infringement.
Understanding how to clear music rights is essential not only to producers, but also to songwriters, artists, and their respective representative music publishers and record companies. Knowledge and experience about standard licensing fees, options, and what rights the production company may need or desire (e.g., home video, Internet, mobile devices) are important factors in making the best business decision when using music in a television show, film, or video.