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

Brooke to attend 2011 SXSW Film Conference

Brooke will be attending this year’s SXSW Film conference.

About SXSW: The SXSW Film Conference and Festival is a uniquely creative environment featuring the dynamic convergence of talent, smart audiences and industry heavyweights. A hotbed of discovery and interactivity, the event offers invaluable networking opportunities and immersion into the art and business of the rapidly evolving world of independent film.
The Film Conference buzzes as world-class speakers, creative minds, and notable mentors tackle the latest filmmaking trends amidst the unmatched social atmosphere of the SXSW experience. Simultaneously, the internationally acclaimed, nine-day Festival celebrates raw innovation and emerging talent, featuring a truly diverse program that includes provocative documentaries, subversive comedies, DIY narratives, genre standouts and more.

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

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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.”

Take Two: Veteran Acts Like Suzanne Vega, Carly Simon and Squeeze Are Rerecording Their Biggest Hits

“Next week, singer Suzanne Vega releases a collection of some of her most familiar songs, including “Tom’s Diner” and “Luka.” But don’t call it a greatest-hits album. These spare, acoustic recordings are new—and so is Ms. Vega’s business strategy for them. The alternate versions are helping her seize some control of songs she doesn’t actually own, at least in their original form.”

- Why Veteran Acts Like Suzanne Vega, Carly Simon and Squeeze Are Rerecording Their Biggest Hits

Re-records have always been a common fixture in the world of music supervision. Sometimes you really need to license “Cherry Pie” by Warrant, and your project simply doesn’t afford you the budget to license the original version from the label. If you can find another good recording of the song — in the case of Warrant, the band itself rerecorded their popular hit for this savvy reason — then you license the and go with the recoding you can most reasonably afford.

But sometimes you can’t find a decent re-record from the original band, so you end up with a decent version recorded by another band or music library. You can legitimately license and use this alternate recordings, in the process sidestepping the labels and the artist entirely.

Thus, as noted in this recent WSJ article, major recording artists such as Squeeze, Carole King, John Prine and The Pointer Sisters have made the decision to issue re-records, both for licensing purposes and to claim a greater share of album sales revenue. But as the article points out, some labels discourage rerecording with contract clauses that prohibit their artists from doing rerecords, usually for five years after the contract expires. Hence, it’s not as easy to find original re-records from recent artists and it’s more likely to see re-recorded albums released from artists of the greatest-hits genre, rather than from Arcade Fire or Lady Gaga.

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