Music Rights Clearance: What You Don't Know Can Hurt You
By Craig McTurk
Music rights clearance is often a cloudy subject for filmmakers and production companies. Oftentimes, this legal necessity is neglected by independent filmmakers until the last minute—when the film is ready for distribution. It is only then, some are horrified to discover, that the obscure 1940's song sung by the main character in their film will cost more to use than the entire budget of the film itself.
In an effort to provide clarity around this important issue, three industry veterans were consulted and have provided some helpful hints to help filmmakers understand the necessity of beginning the music rights clearance process as early as possible.
Mitchell Block, president of Direct Cinema, Ltd., a leading distributor for the educational and home video market knows first-hand that distributors see many terrific programs with impaired distribution options. This is usually due to producers' oversights or misconceptions as to how much the music will actually cost to include in their film. Block warns filmmakers, "Music rights, like any copyrighted rights, need to be cleared before production begins.” For an independent filmmaker, Block contends, "It could cost more to use a Rolling Stones song [performed by the Rolling Stones] in the background of an interview than actually making the film—assuming the Stones would even allow the song to be used. Unlike other rights, sync and performance rights are tightly controlled by entities that generally do not do anyone favors. To use music without prior permission is as foolish as adapting a short story or book for a fiction film without prior permission, or, using registered trademarks or unauthorized stock footage."
Clearly, the overall budget of a program has to take into account the music rights involved. For music documentaries, rights clearances can rival production costs as the single most expensive budget item. Preliminary music rights estimates should be obtained at the point when the show's overall budget is being created.
Before Shooting Begins
Rick Felix, director of VH1 Rights & Clearances, explains how music rights are approached in series like VH1's Behind the Music "The clearances process begins even in the pre-production stages. An experienced rights & clearance person can pretty much evaluate the wish list of music and determine which will be problematic and expensive to use." Due to the high-profile musicians routinely profiled on Behind the Music, Felix often works with the featured musicians himself to secure affordable music rights. Felix adds, "Many artists change their minds at the last minute, or submit restrictions which are difficult to deal with. Musicians can waive their fees, but this is becoming very uncommon unless the project is related to some charity. VH1 does not normally acquire rights for gratis, but we do ask that the artist or their management contact the publishers on our behalf and supply ‘acceptable’ fees."
For documentary or reality-based programs that require estimates for song usage; producers and rights clearance staff can begin the process with a phone call to clearing houses like Diamond Time, a full-service copyright clearance company with offices in New York and London, or, the Harry Fox Agency in New York. This will allow the producers to immediately rule out any songs for which rights clearance will be financially or legally prohibitive.
The National Music Publishers' Association (NMPA) offers an extremely useful website where producers can also research song publishers. Producers can simply highlight the "links" option within the site to access dozens of music publishing companies to initiate direct communication regarding selected song titles. Diamond Time also provides producers with their complimentary brochure, “A Practical Guide to Licenses and Clearances,” which offers a wealth of information about various clearance terms and procedures.
What are Sync Rights and Performing Rights, Anyway?
Music rights for films fall into two categories: sync rights and mechanical rights. Mechanical rights allow the filmmaker to make an audio-only reproduction of a musical composition. Synchronization rights permit the filmmaker to synchronize a musical composition to a visual element (film, TV, home video, multimedia, etc.). According to Cathy Carapella, Vice-President of Diamond Time: "All approvals and licensing fees are subject to negotiation with the music publisher. Fees are usually determined by the popularity of the song, the grant of rights, and the prominence of the song in the production."
Lifting a sound recording off of a CD or audiocassette to use in your program involves the mastering right. Producers are required to clear a sound recording when they have used an actual record (CD, audiocassette, etc.) as the source material for the music in their production. A live "visual-vocal" performance of a song usually doesn't require any record company clearance because no master recording was used (beware of lip-synched performances) but, you still have to clear it with the publisher and owner of the title.
What does all this mean to you? Basically, it will be on your shoulders to ensure that the song title, composer (if possible), and duration as it appears in the film is reported to the music publisher before the program airs on television or plays theatrically or on home video. You will also need to let the publisher know if the song is off of a CD or record album, or if the song is performed "live" either on or offscreen by a musician(s).
Typically, the filmmaker or production company will contact the music publisher directly. However, if a large number of songs appear in the film, a music clearinghouse company may be the more efficient way to go. For a fixed fee, music clearance companies can do the legwork for you and report on the music rights clearance costs for every conceivable market: theatrical, television, home video, cable, foreign, domestic, and new media applications such as DVD and CD-Rom.
Even film festivals these days are becoming increasingly concerned about the liability of showing copyrighted works to a paying audience, and, the festivals in turn are requesting music clearance information from their filmmakers. With an ever-increasing media stream, such as the Internet and the forthcoming broadband video potential, music-publishing companies are challenging illegal uses of their songs in the courtrooms. While filmmakers can purchase Errors & Omissions insurance to protect themselves in court, this legal protection still does not cover international breech of copyright, for which the filmmaker could still be liable.
Tips for the Budget-Minded
For filmmakers, it's important to know they can obtain a quote for all music rights in advance from the publisher(s). This information can help the filmmakers decide whether certain songs will fit into their budget. If the desired song is financially out of reach, other options can be considered like using a different song by that artist, a sound-alike version by another band, hiring a composer, or, for those on limited budgets, using songs that are in the public domain (P.D).
NOTE: Although the song is PD, the arrangement by a particular artist is most likely copyrighted. Be sure to use the PD arrangement, or create a new arrangement for yourself
As the definition of what falls into public domain is ever changing, it is imperative that you consult with The Library of Congress Copyrights Office or a music rights clearinghouse for PD confirmation. Again, this free estimate should be obtained before you go out to shoot. If the program is a music documentary or concert film, the filmmakers should consult with the musicians in advance to determine what songs will be played while shooting. Using a song that is unusually expensive could negatively impact the distribution potential of your film.
Using Stock Music
Like stock footage, stock music is an option for producers to purchase prerecorded music “needle drops” (generally purchased as CD libraries) from such stock music companies as APM, ProMusic, Killer Tracks and Fresh Music Library. These companies offer sound-alike music and a variety of music types to fit every production. Producers may even be able to listen to short music samples by going to a stock music company's website. According to Felix, "If a specific composition is needed, try contacting the actual writer of the piece, but do not try to go behind the publishers' backs. They do not appreciate that."
Do-it-Yourself and Save
As some music clearinghouses operate on a commission basis, customer service can take longer than hoped and interfere with the completion of the show on schedule. With the power of the Internet, producers and filmmakers can access the information directly from the NMPA on their web site which can provide its users with links to numerous music publishers so that the filmmakers can correspond directly with them. Whether by letter, phone, fax or Internet, the music publishers generally provide you with paperwork to complete, or will request a letter from you regarding the song(s) you want to use. Again, most publishing companies will do this for free as a matter of course. While the cost of songs varies widely, there are often $500 minimums for each song used. Music rights for popular songs can go as high as $25,000 or more per song title.
Some other useful information
Carapella notes that it is important to know that, "The length of copyright protection in European territories is longer than in the US. Therefore, a copyright might be in the public domain in the US but is still copyright controlled outside of the States."
Ignorance is not bliss and can come with a huge attorney’s fee. Music publishers are becoming more stringent in their monitoring of music use in films and television programs. The composers themselves can also protest the use of songs that appear in programs about them—the Grateful Dead's music can't be heard on the documentary Tie-Died, nor can Nirvana's music be found in Kurt and Courtney.
In both instances, the filmmakers relied on sound-alike music that was reminiscent of the original material. The dimensions of music clearance can even extend to the area of Hollywood features, as the pre-productions of two rival Janis Joplin bio-pics have been stalled by a host of copyright permission snags with the Joplin estate. If left unresolved until the film is completed, such problems can render an Oscar-caliber film virtually unreleasable. The solution, Carapella stresses, is to determine a song's availability in the pre-production stages. "Availability is the first hurdle before cost. On occasion, copyright holders can, do, and will say no."
The Program's Ready for Distribution—Now What?
Suppose you've finished your terrific new film, and unresolved music rights or expensive legal matters come back to haunt you. What are your options? Broadcasting on PBS may be the way to go. In many cases, there is a predetermined, fixed music clearance rate for programs airing on PBS. This would allow your program to air on PBS four times over three years, with PBS covering the music rights clearance for those songs used in the program. However, producers should first ask the music publishers involved if they are a signatory to the voluntary PBS copyright act, as most but not all publishers have this unique arrangement with PBS.
PBS will require detailed cue sheets from the producer of every program it airs. Producers can obtain these cue sheets from groups like ASCAP, BMI and SEESAC, and it becomes the producers' responsibility to see that they are filled out completely and accurately before submitting them to PBS.
Some video distributors may be able to pay for a percentage of the music rights for shows that they particularly want for their catalog. Clearing all of the music rights in advance of securing a distributor can minimize hassles. In any event, any uncleared music and footage rights should be made known to the distributor or broadcaster in advance of signing contracts or agreements.
Top Ten Tips for Music Clearance
1) Start early! Get quotes for music clearance before you shoot (Allow at least a few weeks for this, sometimes longer).
2) Don't forget to budget for music rights fees when creating the preliminary budget!
3) Use music from CD sound libraries whenever possible. This music is generally pre-cleared and carries no copyright restrictions other than purchasing the CD's and renewing an annual usage fee, if any.
4) Use a music clearinghouse like the Harry Fox Agency to get free quotes on song usage prior to shooting.
5) Check www.nmpa.org to research song titles & publishers.
6) Know how the music's being used. Is it from a CD recording or is it played onstage? Who's playing the music? For how long? Who composed it?
7) Purchase Errors & Omissions insurance prior to distribution.
8) If a sound recording is too expensive, hire musicians to re-record the song.
9) Write your song selections on cue sheets, and keep all of your music clearance paperwork and computer records for future reference.
10) Copyright your own film once all the music and footage rights have been cleared.
Direct Cinema, Ltd. Tel. 310-636-8200 email@example.com
The Harry Fox Agency Tel. 212-370-5330 www.harryfox.com
Diamond Time Tel. 212-274-1006 DTimeNY@aol.com
Fresh Music Library Tel. 800-545-0688 www.freshmusic.com
Craig McTurk is an LA-based documentary producer and cameraman. His latest project is Tokyo Blues: Jazz & Blues in Japan. He can be reached at firstname.lastname@example.org