By Sue Basko, esq.
See part one -- Using Songs in a Film Legally
WHAT ABOUT MUSIC LICENSORS? Today, there are hundreds or thousands of companies that say they are doing music licensing. They have a library of songs and will sell you the right to use a song, in whole or in part, in your film. I suggest only using the very few top notch companies that are working with top notch musicians likely to be represented by a lawyer and doing their legal paperwork correctly.
Why? Because most of these companies obtain their music in slipshod ways, and the likelihood of having clear title to the song is very slim. I have read dozens of these contracts. Most of these contracts appear not to be written by a lawyer. Many of the contracts seem like they were ripped off the internet or borrowed from someone else. Many of the contracts barely make any sense. In many cases, the licensor has no personal relationship with and no particular knowledge of the musician. And the musician has signed the contract without having it read first by a lawyer. In sum, there is a bunch of stuff going on, none of it is particularly legally proper, and the chance of it resulting in clear title is most unlikely.
The music clearance that you hold is only as good as all the underlying legal work, starting with the songwriter on out.
MOST of these licensing companies do absolutely no checking on the ownership of the copyright on the intellectual property of the song or of the sound recording. They have the person that hands them the music sign a release form. And that is all there is to it. There is no due diligence whatsoever. And the musician has no clue what they are signing.
My guess is that most musicians signing over their songs do not know what they are signing. Many or most musicians that work without a lawyer or formal publishing company do not do their own legal work properly at all.
This problem is compounded by a lot of small publishers, record labels, studios, and even promoters, who take rights to songs without even having any particular capacity to do anything with the music. These little companies almost never have their legal work done properly, and in many cases, the musicians does not know what the deal is.
Rightly, there should be a fiduciary duty that attaches with the right to call oneself a publisher or record label, but such a duty will only be enforced if the musician insists upon it. Anyone can call their business a publisher or record label or promoter, and they can provide any service or no service. There are no legal definitions. If one takes rights on a song, there might be a fiduciary duty to attempt to exploit the song for monetary gain for yourself and the song creator and to collect royalties or licensing fees and pay a percentage to the songwriter and/or copyright holder on the song. In fact, the contract probably waives any such duty. The widespread reality is that musicians turn their music over to people that simply stockpile it.
In fact, to be blunt -- most independent musicians sign things without knowing what they are signing. Most music licensors collect music without really knowing if they are actually securing the rights to it. And most musicians do not even know if or when they do fully own the rights to music. And into this mess, you, the filmmaker, step.
If, in your film, you use a song or part of a song to which you do not have proper clearance, this can keep you from getting distribution. If you do get distribution, the film may have to be recalled. You can be sued or forced to pay. You may end out having to re-edit. In short, having an improperly cleared song can break your new film career.
Possible problems that you may encounter include:
- there may be a songwriting partner or participant who is never mentioned and who does not even know of the deal;
- there may be a band member -- or all band members -- who have not been compensated for their work, and/or do not know about the deal;
- there many a studio or producer owning rights on the recording;
- the person or another person may have signed publishing or licensing rights on the song over to someone else already. It is not unheard of for a musician to sign an "exclusive" contract and then go and sign other "exclusive" deals. They may have no idea what "exclusive" means;
- the song may not really be the work of the person saying it is their work. For example, the song may contain unlicensed samples or beats. Or the samples and beats may be licensed for mechanicals only and not for synch;
- In some cases, it is not even their song or recording, but they may represent it as being such. I have heard people say they "worked on" something, only to find out they are friends or cousins with someone who knows someone in the band;
- Independent musicians without lawyers are known to sign lots of things without knowing what they are signing. The company with which they have signed may assert their rights.
- Other times, one songwriter may be screwing over another songwriter. Or one band member may screw over other band members. This happens more than it should. There is no ethical training required to be in a rock band.
TO SUM UP:
If you are going to use a music licensing company, use only a top-notch company. Things that will tip you off: real people, a real location, real working phone numbers. A high quality website written using correct spelling and grammar. A website where the photos are sized right, there is a music player, things look good. Then, do some digging. Ask a music lawyer. Remember -- the integrity and usability of your film is jeopardized if you get music from sources where it is not really legally clear to use.