Since before films had dialogue, they've had music to accompany the pictures. Music in some form or another has been integral to the cinema experience. And so it should come as no surprise that there are complex and very evolved business and legal issues when dealing with music and movies in all of the various ways they can be integrated.
Dealing with music is a very complex and specialized task. Even most of the general public are somewhat aware of how music infuses filmmaking. After all, there are best song and original score awards in all the big end of year fetes. Selecting a composer who “gets” your film, picking just the right tracks for the sound track and convincing producers you need all that extra music to make your film perfect is hard work for any filmmaker. But that's not the only hard work that goes into those decisions.
Often whole departments who do nothing else are used by filmmakers in order to properly license and research the business side of music in film. Little (and sometimes not so little) armies of lawyers, researchers and specialized companies all toil to get each piece of music, no matter how small, into the film. There are many aspects to music integration that most people are unaware of. It behooves writers, writer/directors and film makers in general to learn at least a bit about the terminology and processes involved.
Keep in mind, as indicated by the large crew usually employed in navigating and negotiating these licensing issues, the overview here will necessarily be brief, inadequate and potentially inaccurate. When my projects involve music I quickly run to specialists to handle the minutia for the production. You should too.
The Major Chords
Clearance – the act of securing all rights necessary to use music in a film.
Actually clearance is the term used to secure the rights to everything in a film that is owned or controlled by someone else. Music is just a major part of this process.
Music Rights – a colloquial term that covers the collective of various rights necessary to allow a piece of music to be used in a film. A simple example is another colloquial term, the song, which actually has no legal definition. Our concept of song is a marriage between two separate copyright holder groups: the composition owner and sound recording or phonogram owner. The composition is owned by both the composer and the lyricist in tandem as joint owners. Often this incorporates many more than two people. If you intend to play that song live, off a recording (see below), print the sheet music or lyrics, adapt or change the tune or anything else involving the piece you have to acquire a license from all the composition rights holders to do so. And if you intend to play a musical piece that is already recorded you'll need to license that play from the owners of that recording's sound recording rights (known as phonogram rights in most of the rest of the world outside the US). These are usually owned by the record company that facilitated the recording. This is the case in whatever medium you intend to use music in, with variations depending on the medium, audience and lots of other minutia that are extremely important but not generalizable in an overview such as this.
Film, as an audio visual medium, has its own language covering lots of these issues (probably just to confuse things). One of these terms, when using music is acquiring a sync or synchronization license – this specific license allows an independent musical composition (note: not involving the sound recording rights at all) to be synced to an audio visual product. This allows the production to lay the music track in with the other audio of the film and keep it there without further negotiation or fee payments as long as the terms are not exceeded (see below). If a film producer wants to save money and have a cover band perform a new composition, and avoid the sound recording owner's cut, they still have to pay the composer/lyricist rights owner for the use in the film. (As an aside, in this example, the filmmaker would likely become the owner of the new sound recording rights.)
Especially in creative, narrative works but also in documentaries, there is seldom a use that would be covered by a fair use defense to copyright infringement. There are no “XX number of notes/bars minimum” rules. No background only exception. No minimum use freebee. Every occurrence of music in a film, intended or not, must be licensed properly for all the places and forms that film will take in the future.
And if you use a band or singer/musician you need to make sure you are covered beyond copyright for their appearance. Appearance and Performance Rights cover the use of an appearance (even if only in the soundtrack) and performance of the musician. How you go about securing these rights differ as to which market you are playing in (US is an outlier here, again) but usually someone has to pay for the right to use these individuals in your movie. It's best to find out who that is and make sure if it's you, you are prepared and budgeted for it.
Scope of Rights - the term and breadth of the license granted, e.g. festival rights. You don't have to get, and sometimes you are not able to get an exclusive full license to use a piece of music. Even a non-exclusive license, with enough coverage for the markets your film will be shown in will be sufficient. Just make sure you don't short change yourself or stymie your negotiations for sales with terms that fall short of your needs and have to be renegotiated later. For example if you can only afford to purchase festival rights (rights to use the music only while on the film festival circuit) you'll need to go back to the rights holder and purchase rights for a film release and later home video and other types of media sales. Once the rights holder realizes that your film's a hit, the prices you'll likely have to pay will suddenly go sky high. What kind of license fees are we talking? It could be anything. There are no set amounts, nor any guarantee that you'll be allowed to use it. It could be free or completely unavailable at any price. Every instance needs to be negotiated with every rights holder. (Now you see why it takes an army.)
And don't overlook anything. A film can be stymied by unintended and incidental music rights clearance. There are court cases that show that even a cell phone ring tone or incidental music playing on a passing radio during a sequence in a documentary needs to be cleared or the film's progress can be ground to a halt, expensively.
Sir Not Appearing In This Film
Often filmmakers use temp tracks as placeholders for music sections while editing to give the composer or music coordinator ideas as to what style and tempo they are going for in the finished work. You have to be careful even though these are not the intended final works as to where these pieces with temp tracks are played. Too public an appearance or too long an association and it could open up a legal claim even though they don't end up in the final work.
And even commissioning original works can have their pitfalls. Who owns the works created? Were they created under work made for hire conditions are do they have to be assigned/licensed? Can they be repurposed? If you are a careful filmmaker and garner full rights to the songs you intend to use make sure you've got performance rights with the creators/performers to allow for the possible non-use as well, just to cover all possibilities. These are just some of the things to worry about for wholly, newly created works.
Covers have their own set of issues. If you license the musical composition but try to save money by hiring a new performance by others than the artists who made the work famous to play instead, there can still be problems. There are rights of publicity issues that can raise up if your cover artist sounds too much like the original artist.
Music for the Writer
About the only music you don't have to deal with on a business or legal level is the music you might listen to while writing the script. All other aspects of music in a script raise issues.
When you write a scene and say, “Amanda Palmer's ukelele cover of Radiohead's High and Dry is playing in the background as our teen heroine, Gretchen does her homework on the bed in her room” you've set off a chain of research and legal contractual negotiations that'll involve at least half a dozen entities and likely take weeks and lots of money to resolve involving multiple artists (at least Amanda Palmer and Radiohead), owners, labels, sound recording licensers and performance rights holders. And there's no guarantee you'll get the rights.
I know that sometimes a particular piece of music sets the perfect mood for a scene and suggesting it in the script is a wonderful shorthand way of conveying that. And sometimes only a single piece of music will do – the lyrics or tone or sentiment are required to give character motivation meaning. Would the scene in Say Anything mean the same with a polka coming out of John Cusack's boombox?
But consider carefully how you write the music cue in the script. There's a world of cost and complexity differences between suggesting a style of song as in “60's folk music evoking Dylon-esque tones” versus requiring “Bob Dylon's 1963 recording of Blowin' in the Wind plays on a 45 as Delores dances in the room by herself.” Make sure the story really requires it before setting it into the script and the movie business side has to consider implementing that request.
Even just quoting lyrics could be problematic. It is possible that quoting lyrics in passing might pass eventual fair use muster like a recent court case found for a paraphrased quote of William Faulkner's. But it would take a court case to truly find out. And if you have to quote lyrics and want to get the rights makes sure you talk to both the lyricist and the composer, since the rights are jointly owned by both of them even if you're not using the other's contribution.
But We Didn't Use a Note! Musician Issues
There are lots of other ways music or musicians rights can be a burden to a filmmaker. Appearance of endorsements, trademarks and rights of publicity and other legal issues can all rear their head in the right circumstances. It can even extend to wardrobe choices, say band t-shirts worn by cast. Be diligent and whenever you are using something that might be owned by someone else however tangentially, check it out and send the army into the breach to win that battle for you.
Because, as always, it depends...
- More Legally Speaking, It Depends by Christopher Schiller
- Legally Speaking, It Depends: Ripped from the Headlines
- Legally Speaking, It Depends: Are Ideas Free to Steal?
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