Producers should always “clear” music before placing it in their film. To “clear” music means to obtain permission from the music owners to use their music in the film. If a producer fails to secure permission before placing the music in the film, the music owner(s) can have the court issue an injunction to prohibit distribution of the film or the music owner can charge exorbitant fees for the use of the music. At that point, the producer must then decide to either pay the inflated fees or remove the music from the film.
Generally, there are two ways to obtain music for a film. The first way is to hire someone (i.e. composer) to create music specifically for your film. The second way is to use pre-existing music (i.e. music not created for the film). The scope of this article is limited to the very basic issues affiliated with using pre-existing music in film.
Pre-existing music (not in public domain) has two separate copyrights: 1) the copyright in the song (the written lyrics and music); and 2) the copyright in the sound recording (an artist’s master of the song). For example, the song “(You make me Feel Like) A Natural Woman” was written by songwriter Carole King, but sung on a sound recording by performing artist Aretha Franklin. Therefore, if a producer wanted to use Aretha Franklin’s recording of Diane Warren’s song in a film, then that producer must negotiate with the copyright owners of both the song and the sound recording.
When a producer uses pre-existing music, he does not buy the copyright, but rather the producer obtains a “license” to use the song and/or sound recording. A license is written permission from the copyright owner(s) to use the music in the film. Consequently, the producer must obtain two licenses: a “synchronization license” for the song and a “master use license” for the sound recording of the song.
In order to use the song, the producer must obtain a synchronization (“synch”) license. The synch license allows the producer to reproduce the music on the soundtrack of the movie in synchronization with the filmed images. Producers obtain synch licenses from the owners of the copyright. Sometimes, songwriters sell or assign their copyright in a song to a publisher. Therefore, the producer must locate the publisher of the song. However, if the songwriter does not have a publishing deal, than the songwriters themselves may license their own work and the producer will negotiate directly with the songwriter.
Many factors are taken into consideration when negotiating the fee for the synch license. For instance, an issue for negotiation may be how you intend to use the music: whether it is background music; whether it is performed in the movie; whether it is used as the title of the movie, etc. Also taken into consideration is: the length of the song; the popularity of the song; whether the song is an unknown song used for small budget independent film or a popular song used in a studio’s high budget film, etc. Accordingly, the fees for synch licenses vary greatly with the usage and the importance of the song.
Master Use License
A master use license must be obtained when a producer uses a pre-existing sound recording of music in the film. The license permits the use of the master of the song. Typically, the producer will obtain the master use license from the artist’s record company which usually owns the masters. However, if the artist is not under contract with a record company and still owns the master recordings, then the producer will deal directly with the artist.
The fee to use the master depends on: the popularity of the song, the stature of the artist, how the song is used in the film, the length of the song, etc. Therefore, fees to license the recording can range from several hundred dollars for an unknown artist to thousands of dollars for the work of a well-known artist.
When obtaining rights, the producer must also negotiate to obtain rights worldwide, for the full term of the copyright, and in all medias including: all television rights, home video, interactive and multimedia, etc.
Obtaining the necessary licenses for the use of pre-existing music in a movie’s soundtrack can be a very complex process. Producers must obtain the correct licenses according to the needs of their particular film production. Failure to clear music properly and up front will place the producer in a weak negotiating position and allow the music owner(s) to charge exorbitant fees and possibly delay or even prevent the exhibition of the film.