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Film Independent Mon 8.30.2021

The Fi Hall of Fame: A Filmmaker’s Guide to Music Licensing

Like many organizations, during the past 17 months Film Independent has faced significant losses, as in-person gatherings came to a halt and major fundraisers like the Spirit Awards transitioned online. Through it all, we continued to support our community, moving most programming online and creating an Emergency Filmmaker Support Fund for our Fellows.

But even in the midst of continued uncertainty, we remain fiercely committed to our work: championing creative independence in visual storytelling and supporting a community that embodies diversity, innovation and uniqueness of vision.

If you are in a position to support our efforts, please make a donationYour impact will double, dollar-for-dollar, with the generosity of our long-standing Arts Circle Member Susan Murdy. All donations made to Film Independent before September 23 will be matched up to $50,000.

In concert with our current matching campaign, we’re launching a new retrospective series: The Fi Hall Of Fame, featuring refreshed, expanded and updated versions of most popular blogs of all time. The following piece originally ran in 2015. Special thanks to blogger Lorena Alvarado.

Filmmakers often feel so attached to a song that it becomes a crucial and indispensable element of their story. A scene, or even an entire film, can revolve around a single piece of music. What many directors don’t realize is that the process of clearing that song can be very difficult and expensive. Brooke Wentz, the music supervisor behind Kings Point, Bully and Bill Cunningham New York cleared up some of the confusion and little-known realities of music licensing during a recent Film Independent education event.

The most important thing to know is that there are two rights to every song. There is the person who wrote the song (who holds the publisher rights, aka “sync” rights) and the person who recorded it (who holds the “master” rights). To use this piece of music you need permission from both entities. You can listen to a song like “All Along the Watchtower” by Jimi Hendrix, but you may not know that the writer is Bob Dylan. To determine who owns the rights to songs, the websites ascap.com and bmi.com are extremely helpful.

Once you’ve determined who owns the publishing and the master, you must contact them separately and ask for permission to use the song. This can get tricky when there are a lot of songwriters involved. Katy Perry’s song “California Gurls,” for instance, has five publishers. Therefore, if you wanted to clear this tune you would need approval from all five of the writers and on top of that you would need approval from Katy Perry. If one of them says no, then unfortunately you can’t use the song.

Here are Wentz’s top six secrets for music licensing:

For festival rights, most songs can be cleared at around $500 per side.

Meaning $500 for the publishers, $500 for the master. If you don’t have enough money in your budget to pay for all the rights up front, you can clear only the film festival rights and add an option to get all media rights up to two years later.

The fee is the same regardless of the duration of the cue.

If you use a song for five seconds or two minutes, it will cost you the same amount of money. The only exception to this is if the song is used over beginning or end credits.

The rate for a piece of music is negotiable!

Most filmmakers don’t know that they can offer a lower price, or if the artist likes the subject matter of the film, they might offer a better rate.

If you think a song is in the public domain, double check.

“I had a client who thought ‘My Sweet Lord’ was in the public domain,” Wentz explained. “I said ‘Nope, I’m pretty sure that’s a George Harrison song.’”

No response does not mean an approval.

It might be frustrating if they are not getting back to you, but you have to keep pushing. If you do not clear the rights for a song, you could receive a “cease and desist” letter from the rights holder which could incur fees.

If you’re doing a music doc, make sure you can secure the rights.

If the estate or the artist is not on board you will not be able to use the music. Many deceased musicians’ rights are owned by their spouse or ex-spouse—or both. Certain songs might never be clearable just because of inner conflicts that have nothing to do with you or your movie.

Filmmakers can get charged higher fees because they don’t know the numbers. That’s why it’s useful to have someone that knows about clearance to be the middleman. Brooke Wentz’s company, The Rights Workshop, helps filmmakers secure the appropriate rights for any budget.

Brooke recently worked on a film that got distribution at a festival and needed to expand the rights. She was shocked to discover that the director had licensed the songs himself and got charged five times what the fees should have been. Ouch!

Here some other stuff you should know:

 

Sync vs. Master agreements.

There are several different types of music-licensing agreements, but the two primary ones to worry about are sync and masteruse agreements– these agreements deal with pre-existing songs and sound recordings, not ones specifically composed for your film.

Sync refers to the actual composition/song—melody, lyrics and arrangement – as synchronized in timed relation with a motion picture. In almost all cases, a sync agreement is required in order to use a song in a film.

Take the example of U2’s cover of “Helter Skelter.” A filmmaker wishing to use this specific recording of the song will need first to seek a sync agreement from the copyright holder to the original Beatles composition in addition to a master recording agreement from U2’s record label.

 

Classical music is not free.

Let’s say you want to pull a 2001 Kubrick and score your film with wall-to-wall classical music. You’re in the clear, right? Beethoven and Brahms are centuries dead and their music is in the public domain. After all, it’s not like Amadeus is going to sue you.

Again, the issue of sync vs. master use rears its ugly head. While a piece of classical music may have unrestricted compositional application, the specific performance of a piece of classical music is, in fact, copyrightable.

That means that while the music from “Don Giovanni” may be free to use in theory, the New York Metropolitan Opera’s recording of it is not. You need to seek permission from the original recording’s copyright holder.

You may be thinking, “But doesn’t every version of ‘Swan Lake’ sound the same? Who’s going to know?” Trust us—musicians know. And more importantly, their lawyers know.

 

Beware favors from your rock star friends.

Recording contracts are complicated, restrictive documents that musicians may not always fully understand, which is why it’s always beneficial to enlist the help of a lawyer to help navigate them.

One example is a messy story about a rock star friend who had agreed to write some original music for a friend’s film. The rock star was signed to a major label as part of a band, but assumed that any work he did outside of his group was free from the restrictions of the band’s recording contract.

That wasn’t the case, as the filmmaker soon found out. Typical recording contracts usually tie up any and all of the artist’s work, regardless of the nature of its creation or intended use.

So the next time your pal Pat Smear offers to lay down some tasty guitar loops for your opening credits sequence, watch out. Legally speaking, those loops are likely to fall under the Foo Fighters family of products, property of Capitol Records.

 

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