Facing the Music (Rights)

George Rush June 16, 2009

Awesome music is almost always a hallmark of a really great film. It can evoke the tone of a scene — high drama, nostalgia, alienation, warm fuzzies — in seconds. A lot of the filmmakers I work with become very attached to having a particular song in their film. I read a lot of scripts that have a very specific and expensive song written into a pivotal scene (e.g., THE ARTIST: I’m going to fight this cancer, stay in art school…and I love you!! They embrace as Lionel Richie’s "Stuck on You" begins.) The filmmaker is usually totally crushed when they realize that they can’t use the song without paying a lot of money.

The problem? Getting clearance. Clearing music is one of those horrible, arduous, frustrating tasks that sneaks up on you and can become a major problem in showing or selling a film. The rights to music are sometimes owned by several people, and are bought and sold so frequently that the rights holders probably don’t even know they own the copyright until they refuse a request to use it. Negotiating a contract for using a song can be a long, frustrating, and fruitless process, and inexperienced producers often end up paying a high price for the use.

I often work with music supervisors who specialize in clearing music. We are lucky enough to have several here in San Francisco. One is Brooke Wentz, founder of The Rights Workshop. Wentz says that most filmmakers operate under several misconceptions that can have disastrous results. "I would say that 85 percent of filmmakers think that they don’t have to clear music, or they get copyright clearance from the incorrect person." Filmmakers also make the gaffe of relying on mythical rules like the "five-bar rule," or mistakenly think that their use of the song is a fair use. That "five-bar rule" is an urban legend. Fair use seldom applies with regard to music in film. Wentz emphasizes that if there is no response after contacting the rights holder filmmakers still can’t use a song. "That’s not due diligence. No response is not permission." Getting clearance for both intentionally included and ambient music is essential. Non-clearance of a song can result in an injunction against exhibition of the film until the rights are cleared and paid for or the music is removed.

However, getting clearance for music is possible with a little research, patience, and (of course) money. First, you should locate the rights holders. Usually a piece is owned in part by one or more music publishers, but tracking down the current owner can be difficult since the rights to songs are bought and sold so frequently. Performing rights societies like ASCAP, BMI, and SESAC monitor the performance of music on television, the radio, in stores, etc., and can help locate the current publisher of a song.

Second, you must negotiate a deal with the copyright owners of the music. They’ll want a description of the film, what music you used, how the song is used, and the approximate length of the use. The rights holders will provide a quote, which may be negotiable, that is good for 90 days. The contract is usually signed after the final mix is finished, so you should get this quote before the final mix of the film. You should be careful how you describe your film if it deals with some aspects of controversy. License holders may at their discretion decline a license request based on the content. For example, if you own the rights to a song, you’d probably want to decline to license to a film denying the Holocaust.

There are several different types of rights that you should ask for, but keep in mind that different uses will entail different fees. You will need to get grand rights for public performance of a song that is an integral part of the film. You’ll also need to get reproduction rights: synch rights for the right to record the music as part of the film, which you always need, and mechanical rights if the music is going to be reproduced onto CDs for a soundtrack. If you plan on using the music in a different way than it is used in the film, like in a trailer, you should also ask for out-of-context rights. This entails a higher fee since the music is an important aspect of the film. Adaptation rights are necessary when you change part of the song, such as the lyrics.

For all of the rights you need, you should make sure to get them "worldwide in perpetuity," and for television and all media. If you don’t have a distributor yet, you may be able to get a festival license for a smaller fee. Wentz notes that most copyright holders will ask for at least $250 for using their music in a film festival. If you get a festival license, you should also get a quote for the full rights so you can properly calculate the fees for potential distributors. Wentz warns that many filmmakers show their films without clearing the music first and depend on their distributor to pay for the clearance. However, distributors aren’t willing to wait for information on clearance costs (the negotiation can take months), and most distributors won’t pay for clearance fees at all.

If you’re using a specific recording of a song (who wants to hear your cover version of "Stuck on You?") you have to get the rights to the music and to the specific recording. The copyright holders may be different, so be aware that you must get permission from all the pertinent owners of the music.

Obviously using a lot of music in your film is going to cost some money. If you’re operating on a supertight budget, there are some other options available for using or clearing music in your film. First, have several alternative music choices in your arsenal in case you don’t get permission or the fees are too expensive for your first choice. Wentz also suggests having a friend compose the music for the film so that you won’t have to clear the music. If you absolutely need to use copyrighted music in your film but can’t afford professional help, The Rights Workshop publishes a DIY guide to clearing your music.

Wentz suggests, however, that often doing it yourself may end up costing you more in the end. Inexperienced producers sometimes unwittingly get duped by rights holders. Much more common, is the rights holder simply never get back to you. Despite this poor show of manners, you can’t give up. If you are doing this yourself, persistence is the name of the game. Hiring an experienced music supervisor can save you time, aggravation, and money—something to think about when looking at your budget.

Brooke Wentz can be reached at info@rightsworkshop.com. I want to acknowledge my summer law clerk, Lauren Kubota, who helped tremendously with this article. I had a baby girl last month and have been busier than I anticipated. I cannot wait until she’s old enough to read so she can catch up on my fantastic column.

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