MUSIC RIGHTS

Introduction to Music Rights in Motion Pictures

By Brandon A. Blake, Entertainment Lawyer

Industry Practice-Standard Licenses for Films

In the film industry a filmmaker must obtain two different kinds of licenses to any song or musical composition before he or she can use that song in a film. If the filmmaker wants to use a prerecorded song, for example a track off of a favorite CD, then the filmmaker must also obtain a third license to that song.

The first right gives the filmmaker the power to synchronize the music with the film or video production, to literally record the music onto the film or tape. However, this is not the right to record a song directly off of a CD, tape, record, or other media. 

The second right gives the filmmaker the right to show the film or video to the public with the recorded music. This right is needed when the filmmaker, theater, video distributor, or other distribution outlet exhibits the film. It is the responsibility of the filmmaker to secure this license, even if the film is eventually sold to a major studio.

The third license gives the filmmaker the right to copy a song directly off of a prerecorded source, like a CD or tape, and use it in the film. This is not the same as the other two rights above and must be obtained in addition to the other two rights if the filmmaker is going to record a song directly off of a prerecorded source.

These three licenses give the filmmaker the right to use different aspects of a song or a recording.

Where to Obtain Licenses

Generally, there are four different groups that can be contacted about obtaining music licenses; the publishing company, the songwriter, the record company, and performing rights societies.

The publishing company: This company controls the inventory of rights of a song; often it is a division of the record company. Publishing companies usually own the rights to a song and can grant two of the three licenses.

The songwriter: This artist wrote the lyrics and the composition; he may or may not be the person who actually sang and performed the music on stage. The songwriter may be able to grant certain rights directly.

 

The record company: This company records the music and releases the CDs and tapes. The record company, the company that releases the recording, may be able to grant certain rights to the recorded music itself.

The performing rights societies: Companies like ASCAP and BMI are performing rights societies. These companies have obtained rights licenses to tens-of-thousands of songs, and can act as a guide to finding out who owns the rest of the rights in the songs.

The Cost of Licenses

The costs of rights in songs are very expensive compared to the budget of most independent films, especially since a song is only a few minutes long and the feature film is usually at least ninety-minutes long. No filmmaker, even Hollywood directors, can afford to score a film completely with hit songs.

TIPS FOR MUSIC LICENSES

The owners of song rights may be willing to negotiate lower rates depending on the intended use of the song and the status of the filmmaker. If the filmmaker is a documentary maker or student, the rights owners may be willing to cut their prices substantially, depending on the use of the song. Similarly, if the film is intended solely for festivals or non-profit uses, the filmmaker may be able to negotiate a lower price than for a strictly commercial use.

Festival Rights

Festival rights serve as an alternative to standard music licenses. Festival rights are licenses sold at somewhat reduced rates to filmmakers. Festival rights give the filmmaker only the right to exhibit the film or video in film festivals. If the filmmaker wants to expand distribution to theaters, television, video, or some other distribution outlet, then the filmmaker must obtain standard synch and performing rights licenses for the production.

Unsigned Performers

Often cities have a local music scene composed of songwriters and performers who have not signed with a record company. If a band does not have a connection with a record company or a publishing company, writes or performs original material, and has no existing contract obligations, the filmmaker may enter into a standard agreement with the artists to use their music. These artists can grant all of the required licenses because they have not yet sold any of the rights.
 
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