Using Songs in a Film Legally:
Synch Rights PART 2:
Music Licensors

Using Songs in a Film Legally - Synch Rights PART 2
Music Licensors
By Sue Basko, esq.

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.
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.

Using Songs in a Film Legally - Synch Rights

Using Songs in a Film Legally - Synch Rights
by Sue Basko

After reading this, also read:

Using a song in a film is called synchronization, or synch. To use a song, you must have synch rights. To get this, you need to go to at least two parties and get their permission and bargain with them for a price. The two parties are: 1) the person that owns the recording, such as the music artist or record label; and 2) the songwriters or their publisher/ representative or whatever entity or entities own the underlying intellectual property, that is, the song lyrics and music. You can also get a clearance company to do this for you, but then you are paying the company a good service fee to negotiate and contract on your behalf. I think it makes a LOT of sense to pay this fee, because the process is complex.

If it is an independent artist, they might own the song publishing rights and the recording. But "might" is the key word here. If they do own the whole thing, this can make it much easier for you to get clearance -- if everything they tell you is actually the way it is. You need to ask, but you should also double-check some databases. If you plan to show or distribute the film, you should do all this carefully and get insurance to cover it, too.

Independent musicians sometimes fail to list all the songwriters as copyright holders. Some of them do not know any better. Some think it is every man for himself and whoever is paying to register only registers their own ownership. Others may register this way intentionally to try to claim full ownership. There is nothing saying independent musicians are all nice guys and gals.

Independent musicians also sometimes either obscure the fact or simply do not understand that their recording may be owned or controlled at least in part by a past record label or a producer or studio to whom they have assigned some ownership. Some of these people sign such contracts without even knowing what they are signing, or conveniently ignore it later. Sometimes the indie musicians have even signed an exclusive licensing deal and yet are out bargaining for other deals, without realizing they cannot legally do so. They simply do not understand what "exclusive" means.

So, while it is usually easier and cheaper to get songs from an independent artist, it can also be risky. Check things out and if your gut tells you something is not quite right, listen.

Do the song owners have to say yes? No, they can say no. Granting permission is totally at their option and they set the price.

EXAMPLE: Let's say you want to use the song, "Hey There Delilah," and you want to use the recording by the pop rock group, Plain White Ts.

First, we go to the U.S. Copyright Office Website. Do a search on the words, Hey There Delilah. Two apt entries come up, but both are for the sound recordings, but perhaps also with the songwriting included. All band members are named as co-writers with Tom Higgenson. Then we see the song has been assigned to WB Music Corporation & Fearless Records. A little digging on the site links, and the name of Warner Chappell publishing comes up. Warner Chappell lists only Tom Higgenson as the songwriter. So, we go to the Warner Chappell website. We do a title search and see the company owns the publishing and Warner owns the masters. On the site, we can register as a user and then apply for a mechanical license, a print license, or a synch license.

To apply for a synch license, we must fill out an online form. The form asks:

Name of person or entity seeking to license the song - and all contact information

The name of the production - such as the name of the film, video, or TV show

Synopsis - brief synopsis of the entire show as well as its length

Total Budget/ Music Budget

Project Type - Commercial, Film, Internet, Karaoke, In house/Corporate Use, Performing Rights, Promo, Stage, TV, Trailer, Video, Video Game, Other.

Media: Here they ask you to describe the media type chosen above. If it's for YouTube, they want your YouTube ID#. If you are making videos or DVDs, they want to know how many and the retail price.

Term: How long you want to use the license. Obviously, the longer, the more expensive. The options start at one day, one week, etc. and go in increments to 10 years, and then jump to perpetuity. Film Festival usage is capped at 2 years.

The company will use all this information to allow or deny the song usage, and to set a price. Sometimes more information will be requested. Factors that will come into consideration include your reputation, if the project sounds like something they want to be associated with, your budget, and other plans they have pending. Keep in mind, they do not have to allow you to use the song.

Be especially cognizant of how you present yourself. If the usage is for youtube, they want your youtube ID number so they can look at your page, your other videos, how you present yourself, If you seem talented and creative, your fan base, your hit count, etc. In other words: Do they want to be associated with you?

What if the publisher says Yes, but the owner of the sound recording says No? If the person or entity that owns the recording tells you no or sets too high a price, but the songwriter/publisher tells you yes, you may be able to use a recording of the same song by someone else that does say yes. This means you are using a cover song -- a cover of the original song. In fact, maybe you can use a cover of the same song for a lot less, and it might even have a style that better suits your needs. One way to find covers of well-known songs is to go onto Itunes and search by song name. Since these cover artists are selling on Itunes, you know they are currently active and engaged in the music business. If you click on the song, you should be able to find out some small amount of information, such as the artist's name and/or record label. You can proceed from there to locate the recording artist and see if you can secure synch licensing on the song sound recording. (Keep in mind, you still need permission from the songwriter/ publisher.)

Or, if there is no cover or none that you like, can make your own new recording of the song or of the part of the song that you want to use in the film. For example, if you plan to use 10 seconds of a song, you may want to save time and money by only recording 20 seconds or so of the song, adding the extra seconds to be sure you have enough. Keep in mind that you need to get the statutory mechanical license to record the song. And you still need clearance from the songwriter/ publisher for the synch license. You should really consult with a lawyer if you are considering re-recording a song for use in a film based on not getting permission from the owner of the original recording.

You can also commission a cover by an artist whose style you like. In that case, you need a lot of legal work done. You will need a mechanical license from the songwriter/publisher, a synch license from the songwriter/publisher, and a contract with the commissioned artist that allows you to use the song in the film, in any soundtrack CD or downloads, and divides up who will be given what payments or royalties. You should really get a lawyer to do this.

REMEMBER - Even if you are recording your own cover of a song, you NEED to get permission from the song publisher (or copyright owner) to use the song in a film. This means you are getting a Synch License from the owner of the intellectual property -- the music and lyrics. And you will be bargaining to get that permission and for that price. In addition, you will also need to get a mechanical license to create your cover of the song -- and this is statutory -- I tell you how to get this in the post that tells how to legally record a cover song.

How Much will the song owners charge? This is a negotiated deal between the song owners and the filmmaker. It depends on lots of things: the filmmaker's budget, what kind of film, if the song owners believe the film will bring good exposure and publicity to the song or to them, if the song is owned by a big music corporation or by an individual musician, etc. Usually, it is a lot easier to get clearances from and much more inexpensive to use music from an independent artist. If you are a low budget, independent artists are a good source of affordable music.

What is not related? The world of music law and business is quite complex. Synch rights are not performing rights and are therefore not controlled by the performing rights organizations, or PROs - ASCAP, BMI, SESAC. Synch rights are also not mechanical rights, and are not handled by Harry Fox. Synch rights are not statutorily controlled. Getting synch rights is a private negotiated deal between the filmmaker and the song owners.

HOW CAN I FIND OUT WHO IS THE PUBLISHER? Many songwriters register their songs with the U.S. Copyright Office, and/or with one of the PROs - performing rights organizations, namely ASCAP, BMI, or SESAC. Below are links to those organizations, so you can search their databases. If a publishing company is not listed, the songwriter probably self-publishes. You can contact the PRO and ask for the publisher contact information. YOU ARE JUST GETTING CONTACT INFORMATION HERE -- THESE PLACES DO NOT HANDLE SYNCH RIGHTS!

At the Copyright Office, you can search online or you can pay the Copyright Office to search for you.

When you are looking for the songwriters of a particular song, you may find that the co-writers on a given song may be represented by different PROs, or may have different publishing companies. There may even be U.S. PROs and foreign PROs, and publishing companies scattered about the globe, all for one song. This is especially so for groups from the UK where one or more of the members now reside in the U.S. But, even with an American rock band, you may see that some songs are with one PRO, perhaps one the songwriters were with in their early days. The songwriters may have since signed on to a new PRO, but the songs may not have followed them. Likewise, a publisher may have signed one band member as a songwriter, but may not have signed all the band members. For all these reasons, filmmakers are often wise to hire a clearance company or lawyer to do this work.

HOW CAN I FIND OUT WHO OWNS THE RECORDING? You can hire an experienced professional, such as a lawyer or clearance company, to do this for you. It will be quite time-consuming and detailed. Or if you are meticulous with detail and law, you might attempt to do it on your own. However, your Errors and Omissions insurance may require you to have your clearances done by a professional and doing otherwise may invalidate the insurance. If you do not have your clearances done properly and/or do not have proper insurance, your film cannot be displayed or distributed.

If it is an independent artist, the recording may be owned by the artist. You can ask when you locate the songwriter or publisher. Otherwise, look on the CD, record jacket, Itunes page, or whatever, and see if it comes from a record company. Hunt and look up the record company and contact them. If you have a CD, the address might be on the label. If it is a big U.S. label, you should be able to get assistance from the R.I.A.A., The Recording Industry Association of America.