[NEohioPAL] Legally Obtaining Music for Your Film - Installment #1

[Mary Ellen Tomazic]

*Legally Obtaining Rights to Music for Your Film *

*Installment #1 – Clearance basics*

*by Mary Ellen Tomazic*

         Music is often a very important part of a filmmaker’s creative
vision in putting together a film, and the collaboration between musicians
and filmmakers can result in great things for both parties. From the point
of view of the musician, the use of his or her music in a film brings up not
only issues of payment, but of attribution, business relationships, and
reputation as well. The filmmaker has to think of how he or she would feel
if some of his or her work was used in another film or project, and the
rights to be protected. The clearance of rights to music are mostly
negotiated and not statutory, and involved people and entities other than
the musician, such as record companies, music publishers, and music
performance societies. Whether the filmmaker wants to use existing music or
commissioned music, there are certain steps which must be taken, which can
be costly and time-consuming. To ignore these steps and attempt to use music
without obtaining rights to it, either because you think your film is `too
small’, the amount of music used is `minimal’, or not enough money will be
made to make a difference to the rights holders, is a risky and foolish
proposition. As most filmmakers dream of their film “making it big” even if
it starts small, you would be foreclosing yourself from that ever happening
if you use music that has not been cleared. You will not be able to get a
distribution deal, may have lawsuits filed against you and everyone involved
in making the film, and at the very least may have to reshoot your film
without the music that has not been cleared. This will not only be very
costly to you, but may ruin your reputation for future filmmaking. There are
ways to obtain music more cheaply, but first you have to think about others’
rights and plan the use of music in your film ahead of time. Balancing the
cost of clearances with the need for certain music will help you to form a
budget for your film and make sure you are not causing yourself extra
problems with your production.  **

       Obtaining the rights to use pre-existing musical compositions in your
film will require you to determine who owns the various rights involved;
sometimes it is several people or entities. A synchronization license, which
allows the filmmaker to fix the words and music to the video image, must be
separately negotiated with the copyright holder, usually the music
publisher. You can find out who is the publisher of the composition by using
the American Society of Composers, Authors and Publishers (ASCAP) `ASCAP
Clearance Express’[1]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftn1>,
a searchable database of performed works along with writer, publisher and
recording artist information. The synchronization license gives you the
right to re-record the song for use in your film, but does not allow you to
use any pre-existing recordings of that song. The use of a needle drop or
“cue” of an existing recording means placing the needle down on the
recording and then lifting it in synchronization with visual images. The use
of a “cue’ from a commercially produced popular recording usually involves
dealing with all the normal clearance requirements with respect to the song,
the recording of the song, the recording artist and the performer’s unions.
Organizations known as “production music” or “cue” libraries provide
commercially produced recordings specifically for background broadcast and
film use at a variety of reasonable license rates. The libraries will issue
one license which includes rights for the music and the recording of the
music.[2]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftn2>There
is also the possibility that the copyright owner will not grant a
license of their composition for use in your film, either because he or she
objects to the type of subject matter, or the use made of the song in your
film[3]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftn3>.
For example, the rights holder may not want the song to be used more than
once, or be played over the beginning or end
credits.[4]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftn4>If
you wish to use the pre-existing recording of the song, you must
negotiate a separate master use license with the record label or other
entity that owns the sound recording rights to that composition, and the
artists and musicians that performed on that record. The artist may not want
the song to be used more than once, and may ask for a quote for additional
usage; he or she may want to get the cut onto a soundtrack album as well.
[5]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftn5>The
producers of the 1985 film “Mask” were forced to replace several Bruce
Springsteen songs with Bob Seeger songs in the movie after they reached an
impasse in licensing negotiations for the soundtrack and other formats of
the movie.[6]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftn6>There
was a disagreement between the movie company and Springsteen’s record
label, Columbia, over the percentage of the film’s videocassette royalties.
Springsteen himself had approved their use in the script stage of the
project, but the rights to be cleared also included the record company’s
publishing rights to the pre-existing music. The music was reinstated for
the 2004 Director's Cut DVD version when Springsteen himself pushed for its
inclusion.[7]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftn7>





------------------------------

[1]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftnref1>
http://www.ascap.com/ace/

[2]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftnref2>Clearing
House, Inc.,
*A Guide to Clearing Music in Audio/Visual Mutimedia Products*, 467
PLI/PAT 783,
at 797 (1997).

[3]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftnref3>Clearing
House, Inc.,
*A Guide to Clearing Music in Audio/Visual Mutimedia Products*, 467
PLI/PAT 783,
at 791 (1997); Sam Adler, *Melody Lingers On, Soundtrack Album Agreements, *13
No. 1 Ent. L & Fin. 1 (1997).

[4]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftnref4>Sam
Adler,
*Melody Lingers On, Soundtrack Album Agreements, *13 No. 1 Ent. L & Fin. 1
(1997).

[5]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftnref5>Id.

[6]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftnref6>Michael
London,
*Legal Snarl, Springsteen or Seger?, *L.A.Times, February 27, 1985.

[7]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20-%231%20music.docx#_ftnref7>IMDB
Trivia for Mask (1985),
http://www.imdb.com/title/tt0089560/trivia.
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