[NEohioPAL] Music for films

Tue May 10 07:33:56 PDT 2011

*Legally Obtaining Rights to Music for Your Film *

*Installment #4 – Licensing basics and budgeting*

*by Mary Ellen Tomazic*

          No performance license is required for commercial exhibition of
motion pictures in United States theaters; however, a separate performance
license is required for in-theater performances in
Europe.[1]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn1>With
the use in a film of an existing recording, record companies may
require a separate license for distribution of the film in a format for home
viewing, or a `home video license’. This may provide for a unit sale royalty
to the record companies and possibly for royalties for each rental of a
video disc.[2]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn2>Film
producers may attempt to include the rights for DVD or other media
formats for re-release of their film along with the original license so they
do not incur additional licensing fees. If the cost of this additional
license is prohibitively high, or if the copyright holders of the original
song refuse clearance for the re-release, the filmmaker may edit out the
affected song upon re-release in other formats, or replace the original
recording with a similar one.

          Since agreements for synchronization licenses are voluntary and
are negotiated based on industry standards, but the contract language must
clearly reflect all the possible uses contemplated by the parties, whether
they are then in existence or not. In the case of Bourne v. Walt Disney Co.
[3]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn3>,
an assignee of copyrights for musical compositions contained in two animated
motion pictures, “Snow White and the Seven Dwarfs” and “Pinocchio” brought
an infringement action against a motion picture and videocassette company,
based on distribution of videocassettes of the motion pictures and use of
the compositions in television commercials. The issue was the scope of the
synchronization license granted by Bourne to Disney in the 1930s when the
movies were first released. The circuit judge held that the term `motion
picture’ in the license was not limited to a particular type of storage
media, and the fact that videocassettes were unknown at the time of the
agreement did not mean they were not contemplated by the
parties.[4]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn4>The
makers of the 1991 film “The Commitments” ran into a similar problem
with a 1965 television performance of James Brown on the TAMI
Show.[5]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn5>A
27-second clip of the performance was used in the film, sometimes
shown on
a television n the background, sometimes taking up the whole screen. Mr.
Brown argued that his 1964 agreement with the producers of the TAMI show did
not allow use of his performance and likeness in films, film promotions and
videocassettes, but only in connection with distribution of the television
show itself.[6]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn6>The
district court did not agree with this limited interpretation, and
held
that the agreement did not prohibit other uses, including other media such
as videocassettes.[7]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn7>Mr.
Brown also lost on his California state right of publicity claim,
since
the filmmakers had the right to use the clip in the film, they had the right
to use that scene from the film in their promotional
activities.[8]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn8>
 With use of any film clips containing music in your film, remember that an
old film clip may be in the public domain, but the music contained in it may
not be. For example, the rights holder of the film may not have renewed the
copyright, but the holders of the rights to the music used in that clip may
have renewed the copyright for an extended number of years.

          Clearance of as many rights as possible as early as possible is
highly recommended, and should be done as early as possible to ensure that
the cost of rights fit within your film’s
budget.[9]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn9>Failure
to obtain and properly document clearance of all appropriate music
rights may prevent you from securing a distribution deal for the film, and
could lead to lawsuits from the rights holders.
[10]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn10>
Negotiation of all pertinent rights for a film can be time consuming
process, requiring not only a lot of research, but bargaining and
compromising with the rights holders. To make things easier, a professional
third party organization may be used to clear rights to music for your film.
Licensemusic.com is the web’s leading provider of music for film, TV,
advertising and interactive services worldwide. The Music Bridge, LLC is one
company that licenses music to producers for film, TV, radio and various
digital media projects.[11]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn11>Another
is PrimaryElements, which offers royalty-free music licensing.
[12]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn12>

          Clearances can be a substantial part of your film production
budget, usually between two and five
percent,[13]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn13>so
it is wise to consider the scope of the use of music compositions in
your
film.[14]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn14>In
2008, Jonathan Caouette’s film
*Tarnation, *a documentary about his relationship with his mentally ill
mother and growing up gay in Texas, was screened at the Sundance Film
Festival.* *It was shot on a Sony Handicam and edited* *using Apple iMovie
software. It cost $218.00 to make, but rights clearances pushed the real
budget to $400,000. Clearing popular songs may be out of your budget, and
some rights may be completely unattainable at any cost. Caouette also had to
excise a lot of material from his film because rights could not be obtained.
[15]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn15>

          The scope of the use, including geographic extent and duration,
and kinds of rights desired (DVD, online, TV, etc) should also be carefully
considered. With the advent of films and television shows being offered in
digital form online and on wireless devices such as smartphones, IPads,
questions about how to compensate copyright holders for their music in
previously released and new films and shows. Television shows in particular
use a lot of needle drops or music cues per episode; HBO shows such as “The
Sopranos” and “Entourage” routinely use 10-12
songs.[16]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn16>Studio
contracts are changing to ``all media excluding theatrical’’ (AMXT)
for new films so negotiations don’t have to occur with each new technology
platform. As was evident with home video, not having preclearance to use
songs when the film comes out on DVD has led to replacing songs if they are
too expensive to
obtain[17]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn17>In
addition, many television show contracts are being amended to provide
for
rights in perpetuity, instead of the formerly standard five year option. The
exception to that rule is still shows in their first year. Fees can be more
or less depending on the stature of the artist, the length of use, how the
recording is being used. Local or lesser known artists may allow use of
their recordings for a much reduced amount compared to major recording
artists and record companies.

          A rights holder also may have a `most favored nation’ clause,
which means that they cannot be paid any less than any other licensees of
music for the film. In that instance, if rights holder A is being paid
$10,000 for his song, and rights holder B signs a contract to be paid
$12,000 for his song, rights holder A with a MFN clause will have to be paid
$12,000 as well. It is therefore helpful to attempt to get all music
licensees to accept uniform compensation, if possible, or you may have to
choose to walk away from the licensee with that kind of clause or break the
MFN clause and pay all the music licensees the higher
amount.[18]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftn18>

Mary Ellen Tomazic is an attorney in Cleveland specializing in entertainment
issue such as copyright, trademarks, contracts and licenses for musical
groups and filmmakers.

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

[1]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref1>Vincent
D. Paragano,
*Making Money from the Airwaves: The Basics of Music Licensing, *183-APR
N.J. Law. 10 at  12 (March/April 1997).

[2]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref2>Id.

[3]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref3>68
F.3d 621, U.S.P.Q.2d 1449, 1995 Copr.L.Dec. P 27 at 460 (1995).

[4]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref4>Id.
at 631.

[5]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref5>Brown
v. Twentieth Century Fox Film Corporation, 799 F.Supp 166, 26
U.S.P.Q.2d 1626 (1992).

[6]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref6>Id.
at 170.

[7]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref7>Id.
at 171.

[8]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref8>Id.
at 172.

[9]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref9>Kimberlee
Weatherall,
*Fear Factor: Films and the Copyright Clearance Jungle* (September 30,
2005),
http://www.artslaw.com.au/articles/entry/fear-factor-films-and-the-copyright-clearance-jungle/

[10]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref10>Copyright
Clearing House, Inc., *A Guide to Clearing Music in Audio/Visual Mutimedia
Products*, 467 PLI/PAT 783 at  786 (1997); Joy R. Butler, *Five Good Reasons
to Clear Rights Properly and to Request Permission When Needed,* (Jan. 08,
2008),
http://www.guidethroughthelegaljungleblog.com/2008/01/five-good-reaso.html.
See also Part III of this paper on Errors and Omissions insurance.

[11]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref11>Themusicbridge.com.

[12]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref12>PrimaryElements.com

[13]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref13>Tamara
Krinsky,
*Notes to play by, a primer on music and independent film*, 25 The
Independent Film and Video Monthly 35 at 2. (March 1, 2002).

[14]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref14>Kimberlee
Weatherall,
*Fear Factor: Films and the Copyright Clearance Jungle* (September 30,
2005),
http://www.artslaw.com.au/articles/entry/fear-factor-films-and-the-copyright-clearance-jungle/
.

[15]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref15>Id.

[16]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref16>Melinda
Newman,
*I Want My Mobile TV, *Billboard, July 8, 2006, at 32.

[17]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref17>Newman,
at 32.

[18]<file:///C:/Users/Maryellen/Documents/Indieclub%20Article%20%234%20-%20Licensing%20basics%20and%20budgeting.docx#_ftnref18>Krinsky,
at p.2.
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