Indie Toolkit Feature: What You Need to Know to License Music for Film

By George Rush

At the beginning of The Royal Tenenbaums, the famous Beatles song “Hey Jude” prominently plays over the opening sequence. Fans of The Beatles will instantly recognize that it’s not Paul McCartney’s voice. It’s a cover version of the song. Did director Wes Anderson think he could improve upon one of the greatest pop songs of all time? Of course not. The reason we hear a different version is simple: He was able to acquire a “synchronization” license, but not a “master use” license.

In the past I’ve written about the importance of clearing music for your film. This is something that will always be your responsibility. The distributor doesn’t take care of this. When you show at a film festival, you at the very least need a film festival license, and when you’re obtaining that license, you also want to get quotes from the licensor on how much the other rights will cost. That way you will know how much you will need to ultimately deliver the film. This is an arduous task as most labels and publishers really don’t want to deal with indie producers wanting to license music on the cheap. But the key to this effort is persistence. Eventually they will deal with you—more often than not just so you’ll stop pestering them. Often I do this task for clients, and music supervisors (such as Brooke Wentz at The Rights Workshop) can also take this burden of your shoulders. Licensing music has its own industry speak and process that often confuses and seems counter intuitive. Like most industry terms, once you figure out their meaning, the process is a lot less daunting than it seems. So this article is just going to break down a few of those common terms.

Any filmmaker will tell you that music is a vital component to experiencing their film. However, getting the rights to that music can be a complicated process. Music is unique to copyright law because it has two copyrights—one for the song (the musical composition and the lyrics) and one for the actual recording of the song (record, tape, CD, digital file, etc.). So a specific recording may require separate licenses. In the music industry the rights to license a song is referred to as a “side.” A “synchronization license” and a “master use license” are each considered a side. For example, “a thousand dollars per side” means that the synchronization license and the master use license each cost a thousand dollars.

Any time a filmmaker wants to use a song in a film, he or she must acquire a synchronization license. This license only applies to the musical composition and not the actual recording. It allows a filmmaker to reproduce the musical composition and synchronize it with the visual images. Anytime you hear a cover version of a song in a film it is likely because the filmmakers were only able to acquire a synchronization license.

If a filmmaker wants to use a specific recording of a song, such as The Beatles’ version of “Hey Jude,” he or she will also need to acquire a master use license. In most situations the record company owns these rights. When you hear an original version of a song in a film it’s because the filmmakers were able to acquire both a synchronization license and a master use license.

It gets more complicated if the filmmaker wants to release a movie soundtrack. To do this he or she must obtain a “mechanical license,” which grants an individual the right to reproduce and distribute the composition on phonorecords (this is defined broadly to include CDs, records, tapes, and certain digital configurations). If the filmmakers want to include a cover version of a song, he or she is able to do so because the Copyright Act created a compulsory licensing system that allows an individual to obtain a license to create and distribute a new sound recording of a song as long as he or she does not change basic melody or fundamental character of the work (i.e., hip hop sampling is not eligible). However, if a filmmaker wants to use a specific recording of a song on the soundtrack, he or she needs to acquire a mechanical license and a master use license.

In order to acquire a license a filmmaker must find out who owns the copyright. This information can usually be found on the CD packaging (if anyone still buy CDs), the band’s website, or on the U.S. Copyright website. The music artist does not usually handle the administering of licenses. Generally the artist assigns the copyright of the musical composition to a publishing company that administers synchronization licenses and distributes royalties to the artist. A filmmaker should generally contact ASCAP or BMI to acquire the synchronization license. The copyright of the sound recording is usually owned by the record company, which administers the master use license and distributes royalties to the artist. To acquire the master use license the filmmaker should contact the record label itself. Many media companies have set up an easy to use online system, but they are bombarded with requests. So a filmmaker must be persistent and actually call the record label to acquire a master use license. For mechanical licenses, a filmmaker can usually acquire the license through the Harry Fox Agency.

Licensing can be a complicated, frustrating process. Yet, the copyright owners have exclusive rights over the music and using the music in a film will generally not be considered a fair use. Therefore, to avoid litigation a filmmaker must acquire the necessary licenses before including any music in their film.

This is always a depressing thought, especially when someone is doing a music doc or a rock biopic. Those films have tons of songs that all need to be licensed. If you are making a film that is music oriented, make sure you can afford those rights before you are too deep. You may be making a film that is cost prohibitive.

However, and this is a major aside, if you are making a rock doc about David Lee Roth, there is no price too high in my opinion, as I can imagine no more worthy subject than old Diamond Dave. Like, what was he and has the world ever seen anything ridiculously awesome since? Where did he buy his clothes? If you are making this film, you are doing the Lord’s work and call me please.

Special thanks to my associate David Owens, who wrote the lion’s share of this article. He is to law what David Lee Roth is to humanity.

Via SF 360

Clip Show: A Practical Guide to Fair Use

Filmmaking is a constant struggle between creative vision and budgetary restraint. In the production of our documentary, Bigger Stronger Faster, no issue better demonstrated this tug-of-war than our use of archival footage. As writers/producers, we quickly learned about an important tool called the Fair Use Doctrine, which could help us balance the conflict between our goal of being legally and fiscally responsible, and telling the most honest and accurate version of our story.
The first problem we encountered is that it seemed like Fair Use was sort of an urban legend: Does it really exist? Can you really use archival clips without licensing them? And does anyone understand how this all works? We spoke with many producers, who seemed to fall into two camps: those who never evoke the Fair Use Doctrine because they heard it is so complicated to wage your legal argument, and those who cavalierly claim “Fair Use!” for every clip in their film and then cross their fingers. Three years later, we managed to finish, sell and distribute a film containing over 800 archival clips with hundreds of cases of the Fair Use Doctrine being practiced, and we decided to share some of the practical lessons we learned about Fair Use with other filmmakers.

Bigger Stronger Faster is the story of our director, Chris Bell, and his two brothers who grew up during the ’80s under the influence of muscular action stars like Arnold Schwarzenegger, Sylvester Stallone and Hulk Hogan. The American Way was being projected to these young, impressionable boys as a win-at-all-cost mentality, and we were interested in how that affected their decision to use performance-enhancing drugs later in life. To truly examine the impact popular culture had on these three brothers, we knew we had to use archival footage from the time period. We also knew we could never effectively tell this story without actually showing clips from professional sports. As we broke down our wish list of archival footage, it was full of movie and television clips from some of the most high-profile and notoriously litigious corporations in the world, including the International Olympic Committee, Major League Baseball, the National Football League and World Wrestling Entertainment—all of whom did not want their brand associated with a movie about performance-enhancing drugs. When they all denied us the right to license footage from them, it was easy to become discouraged.

Thankfully, we had a dedicated archival team (Andy Zare, Pamela Aguilar and Susan Ricketts), and a legal team that specializes in the application of the Fair Use Doctrine. You must find an attorney familiar with Fair Use. In our case, attorneys Michael Donaldson and Lisa Callif (Donaldson & Callif) soon became two of the most valuable members of our team; additional critical advice came from veteran archive producers Prue Arndt, Deborah Ricketts and Barbara Gregson. What follows is a list of steps and tips that we learned along the way.

The Rough Cut—Organizing the Footage

The first decision we had to make was whether to include clips in our rough cut that we knew we could never license. One philosophy is to only use timecoded clips from legit archive houses so that when it’s time to picture-lock and finish your film, the process is relatively straightforward. The other philosophy (which we adopted) is to explore any and every possible editorial option—clearances be damned! We decided it was more important to edit the film without creative restrictions, and thus we ended up digitizing footage from traditional archive sources whenever possible, but also from every other imaginable source: DVDs, YouTube videos, TiVo’d news programs, old VHS tapes, etc. But it was far from reckless abandon. Our archival team implemented an organization system to timecode and track every piece of footage through a Filemaker Pro database. Since this approach resulted in hundreds of hours of archival footage, we had a team of interns constantly logging new footage into our database, and an apprentice editor working the night shift digitizing footage.

The Legal Review
Once we had a relatively coherent rough cut, we output a timecoded DVD with a corresponding log of the archival clips in the cut, identifying the copyright holder, current licensing status, and whether we anticipated making a Fair Use argument for the clip. This DVD/log went to Donaldson & Callif for review. They examined the context of every archive clip we had marked as Fair Use, and gave us their legal opinion on the strength of each case. In all honesty, we were anticipating an “Us-vs-Them” kind of relationship where the lawyers were going to try to stop us from exerting our creativity with an overly conservative approach to the law. On the contrary, the goal of our attorneys was to exercise the Fair Use Doctrine as often as possible—not just as a Plan B if the clip license is denied. If our use of a clip falls within the definition of Fair Use, we would use the doctrine—and quite often not even approach the copyright holder at all.

Fair Use or Not Fair Use?

This is not to say that our attorneys let us off easy. They denied Fair Use for as many archive clips as they approved. They were very strict about the necessity for the clip to be contextualized, rather than just an entertaining cutaway. For example, in one scene we explore the use of amphetamines by Air Force pilots. As a fun introduction, we tried to use that memorable clip from Top Gun: “I feel the need for speed!” Funny? Yes. Fair Use? No. Our attorneys told us that if we wanted to use the clip here, we would have to obtain the license from the movie studio as well as the talent releases from the actors in the scene (including Tom Cruise).

Making the Case—and the Story—Stronger

Donaldson & Callif provided not just a list of approvals and denials, but also notes about how we could alter the rough cut in order to make Fair Use arguments. Does that sound like creative notes coming from your lawyer? Well, we were surprised to learn that by accepting their advice and better contextualizing a clip, we not only waged a better Fair Use argument, but we quite often made a clearer story point. For example, there was a clip of Hulk Hogan delivering his wonderfully over-the-top motto: “Train, say your prayers and eat your vitamins…Be a real American!” We thought the clip was hilarious, but on the advice of our attorneys, we added voiceover before the clip explaining how much that motto meant to Bell and his brothers as children. The result was a stronger defense for Fair Use as well as a much more meaningful scene.

When to Hire an Attorney

Another important point to understand about our relationship with our Fair Use attorneys is that we brought them into the process very early—six months before we finished editing. It was essential to get their advice while we still had time to re-cut scenes—even re-think scenes, if need be. It would have been an enormous mistake to limit the value of their input by waiting until picture lock before involving them.

The Downside of Fair Use

One of the benefits of licensing a clip, in lieu of applying Fair Use, is that you also get access to a high-quality master. With Fair Use, you are on your own to find the highest-quality copy of the footage, which can take weeks and requires a great deal of manpower. We ended up “mastering” from sources as degraded as old VHS recordings of TV shows that we bought second-hand and from low-res online downloads for which no master source even existed. Post-production became more difficult as we had to convert and up-res all of these different formats to high-def. In a few cases, we actually decided to pay for the license of clips for which we knew we could employ Fair Use, simply to get the high-quality master.

E&O Insurance

E&O Insurance is another important factor when considering Fair Use, as there are currently only a few insurance providers that will cover it, and it’s safe to assume that they will need a little extra explanation before they dive in—and may even ask you to alter your edit before they will agree to insure your film. Our Fair Use attorneys were vital in these steps as well.
The Distribution Stage

When it comes time to sell your film, bear in mind that many distributors are still clueless about the application of Fair Use. We would recommend allowing money in your budget for your attorney to talk through your archive clearances with your distributor’s legal department. The Fair Use Doctrine is also a little more difficult to apply when marketing the film. This makes it tricky when your distributor is producing the trailer, for example. You’ll need to approve the trailer to make sure they are not using any Fair Use footage out of context, lest it lead to a lawsuit from the copyright holder and affect the release of your film. Remember, as the independent producer, you are responsible for claims made against your film, not your distributor.

When Copyright Holders Attack

After the film has been released, expect to get calls from copyright holders upset about your use of their footage. Most copyright holders have never heard of Fair Use, and you should allow some money in your budget to have your attorney call and talk through the evidence you have. If you have been responsible in your Fair Use decisions, most complaints will only require one phone call from your attorney to make them go away. We encountered a handful of copyright holders from some very large corporations who were not pleased that their clips had been used in our film, but we were well prepared by our attorneys and had no problem avoiding any legal claims.

Know Your Rights

On a final note, Fair Use is still an area of law that only a limited number of professionals have a solid handle on. The legal departments of the major studios and television networks are prone to roll over and settle with copyright holders, rather than defend their Fair Use cases. This makes it especially difficult for the independent producer, but if filmmakers were more confident in their knowledge of the Fair Use Doctrine, they could tell their stories as truly intended. In truth, it can be very stressful to challenge a copyright holder’s right to their own footage, but it can be done, and your best resources are a good attorney—and a strong antacid.

By Tamsin Rawady and Alex Buono

Film Festival Season: Five Last-Minute Music Clearance Tips

To a distributor, a great film with rights and permissions cleared in advance is like a beautifully-wrapped Christmas present, complete with bow on top. It’s a good idea to get the music cleared before your film screens at high-profile events because it locks in more favorable rates and gives you an opportunity to present your film as an attractive, hassle-free investment.

If you haven’t cleared the music in your film yet, it’s not too late to secure the rights. Here are some tips for getting the rights you need.

Follow The Rules

Record labels and music publishers follow a specific protocol when it comes to negotiating music rights. We could write (and have written!) an entire book about the subject, since it’s what we do for a living. If you must clear a song, you should put together a simple, clear music clearance form and submit it for review to the appropriate contact at Warner, EMI, Universal, etc. No one has time to review that PDF of your script; no one wants to actually read your discursive, piquant letter of advocacy requesting use of the song. Just keep it short and easy and make sure it ends up in the right inbox because these companies are enormous. And if you need some guidance, just hit us up and we’ll be happy to help you out.

Stay Humble, Manage Your Expectations

Many filmmakers are elated to be accepted to a brand name festival and are surprised to discover that labels and publishers are not as elated. In fact, announcing that you’re exhibiting can sometimes even add a thousand dollars or more to the quote. You don’t need to present your film as the best, most critically-lauded movie ever made to get an answer to the question of how much the song costs. You do need to provide the appropriate information when it is requested, like total production budget.

Consider The World Of Sound-Alike Recordings

Does that Frank Sinatra song cost half your film budget? If you must include well-known songs but find budget to be a challenge, you may consider the world of sound-alike master recordings, which can effectively cut your licensing fees in half. Just make sure that you clear the song itself and that you have obtained permission to use a non-Sinatra recording.

Think About Budget-Friendly Alternatives

Is there an easier-to-clear song that could take the place of the song you haven’t cleared yet? Could you replace the song for the festival and license the original later? And if you decide to use the song at the festival, are you prepared with a replacement in the event that you can’t afford or obtain the rights later? These are things that are worth considering if you are walking into a festival with music that has not been cleared.

Retain Your Dignity

Desperation doesn’t win you any points in the dating game, and it certainly isn’t going to win you any points in the music clearance arena. That said, there is a distinction between desperation and urgency. Instead of written pleas or outright groveling, consider deadline dates, large-point font and a formally-worded sternness that conveys priority. Colors are good too; we personally like red.

Stay Calm

If you don’t get the rights before the screening, it is entirely possible that no one will notice. The difficulty comes when you are trying to secure a distribution deal or when you are trying to license the rights after you’ve secured the deal and after you’ve screened at the festival. To at least benefit from the consideration that you are proceeding in good faith, start the clearance before the festival. And don’t forget to call us if you need help.

Even Jay-Z Has To Go The Extra Mile To Clear And License Music

_{Image courtesy of SOCIALisBETTER}

Last night Jay-Z made an appearance at the Live at NYPL series to promote his new autobiography Decoded. Among the many intriguing stories he shared with the audience, riffing on topics like Biggie, children and fame, he told of his efforts to convince composer and lyricist Charles Strouse to let him sample Annie for “Hard Knock Life”:

“I told him that we had an essay [contest] at school and I won the essay and we went to see Annie on Broadway and how it affected my life. The truth is — that last part was true, it did affect my life. My sister Andrea, we call her Annie, so when it came on TV I was immediately drawn to it. I was like, this is about us. This is how we feel. So years later, when I was on tour and Kid Capri had played this instrumental that the 45 King had made, it stopped me in my tracks. I was walking offstage after performing, and he played the song as an intermission before the next act went on, and I heard this sound, with these drums, and I told everybody around me, ‘Wait a minute.’ I went around to the D.J. booth, like, what is that? [45 King] is notoriously hard to find. We found him in Maryland somewhere. I recorded the record.”

Adventures In LA: Team Rights Workshop Talks About Music, Movies & Numbers

Dear Filmmakers & Friends,
Team Rights Workshop is enjoying this particularly foggy San Francisco summer and getting ready to head south for the Los Angeles Film Festival at the end of the month. Here are some updates from our world of demo CDs, cue sheets, deadlines and “I’d like to license The Rolling Stones, pretty please”.
Let’s Talk Numbers: Music Budgeting Sessions In LA
Do you have questions about the cost of music? Are you worried about the cost of temp tracks? In response to popular demand, our team will be holding another round of one-on-one music budgeting sessions with filmmakers in Los Angeles during the 2010 LA Film Festival. Bring song lists, film descriptions and any questions you may have about the music licensing process.
Meetings are 100% free and available on a first-come, first-served bases between the dates of Tuesday June 22 through Friday June 25. Please email Jenna Levy at jenna@rightsworkshop.com to arrange a time.
LA Film Festival
The Rights Workshop is a proud sponsor of the 2010 LA Film Festival. Please sign up for our LA Film Festival party list to receive updates about events, parties and screenings in Los Angeles during the week of the festival.
Also, be sure to catch screenings of these great films we’ve enjoyed working on recently.

• Marwencol. “Marwencol” is a documentary film about the fantasy world of Mark Hogancamp, who was left with brain damage after several men attacked him outside of a bar in 2000 and coped by creating a 1/6th scale World War II-era town in his backyard. Mark populates the town he dubs “Marwencol” with figurines representing his friends and family and creates life-like photographs detailing the town’s many relationships and dramas.
• The Two Escobars. “Two Escobars” pairs the soccer mania of the notorious Medellín crime lord Pablo Escobar and the fate of Andrés Escobar, one of the players for the national Colombian soccer team.
• Everyday Sunshine: The Story of Fishbone. “Everyday Sunshine” traces the band Fishbone’s history, influence, and struggle as individualistic, genre-blending artists up against an unforgiving music industry that threatens to pass them by. Featuring interviews with Flea, Gwen Stefani, Ice-T, Perry Farrell, Branford Marsalis, George Clinton, Tim Robbins, Gogol Bordello, ?uestlove, and others.

If you’re reading this, we think you tell great stories and want to hear about the movies you’ve making recently. Please tell us what you’re working on and what you’re listening to! Send us love letters, mixtapes, song clearance requests, creative music search requests, and music emergency S.O.S. requests.
Your sincerely,
The Rights Workshop