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Film Independent Tue 7.11.2017

A Filmmaker’s Guide to Music Licensing

EDITOR’S NOTE: The following blog originally ran on filmindependent.org in 2015 and remains one of our most-read articles. We’re republishing it here, with minor edits to the original text. Special thanks to the author, blogger Lorena Alvarado.

MUSIC LICENSING

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.

WENTZ’S TOP SIX SECRETS FOR MUSIC LICENSING

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

2. 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.

3. 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.

4. 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.’”

5. If you’ve contacted the publisher and masters and have not heard back from them, this 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.

6. If you are doing a music documentary, you must make sure you can secure the rights beforehand. 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!

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  • Brooke is fantastic. I worked with her on licensing major label songs for my current feature, A Sort of Homecoming, and she came through for us big time. Couldn’t have done it without her.

  • karen

    Actually, the point about documentaries is not fully correct. For documentary film-making, if you are talking about the song (e.g. critiquing the song), and use a clip of the song in context, you do not need to clear the rights, it falls under fair use.
    See the Documentary Film-maker’s Statement on Best Practices for Fair Use http://www.cmsimpact.org/fair-use/best-practices/documentary/documentary-filmmakers-statement-best-practices-fair-use

  • Tracy

    What about covers of songs? (Example: the ‘I am Sam’ soundtrack) That might have been a noteworthy mention in this article.

    • I haven’t seen “I Am Sam.”
      But if you’re talking about a cover version being recorded specifically for the film (and either shown as performed within the story or just used as soundtrack), then the film’s owner is creating a new Master (or someone else is creating it at his direction, which means it’s a Work for Hire). Either way, that new Master recording is owned by the film’s owner. So there are no Master Rights to clear. You only have to clear Sync Rights, to the songwriter or his successors.

    • FilmIndependent

      Hi Tracy,
      Here’s what Brooke says: “When recording a cover or licensing a cover song one only needs to get permission from the publisher. Hence with the “I am Sam” soundtrack, they saved a lot of money because they did not need to get permission from the artists who originally recorded the songs. However they did need to pay for the cost of recording the new version.”

  • We had discussions with Sony publishing over tracks for the British comedy Womble, we decided to get our songwriters to make some original songs, this was due to the high fees.

  • Brooke not only knows the complexities of her profession inside and out – she also (and this is more rare to find in combination with simple licensing expertise) possesses a deep musical insight and culture. The combination of these two qualities is rarer in her profession than one would expect – and makes the resource she provides that much more valuable.

  • daniela

    if i want to use a song “cover” for a short film, do i have also to but the rights??

    • Craig Garfinkle

      To do your own cover and use it in a film. you need to acquire a “Synchronization License” to use the intellectual property of the song in sync with your image. That gives you the right to synchronize a “Master” recording that ou create. To use an original recording or “Master,” you would need a separate license.

  • Dave Cayco Aballe

    I’m now a bit more informed… Many thanks! xD

  • Floridacoastdude

    This is good stuff. We are a small indie film group and was looking to do a short film which is a salute to Police Squad and their wonderful zany jokes. We are in early, early pre-production working out the legal stuff and for the life of us, we can not find either on ASCAP or BMI how to contact Ira Newborn, the composer. We have very little money and it is for just regional film festivals.So we are lost at this point. Anyone have any ideas? Would use the theme only at the beginning of the film and not the whole cut.

  • gijara

    I wanted to do cover song’s myself to use in a pilot episode that I am working on and was wondering if I would still need to get permission. By its nature, it’s a for non-profit film program and so I wouldn’t make anything from the episode, It would just be to get my name out there. Since I wouldn’t be making money from it, would it be ok for me to use cover songs that I do myself? Or would I still need permission?

    • brizzle

      i believe you must note that you are not intending to use this for profit, so whatever platform you decide to post it on such as youtube, make sure you add somewhere in the episode that you do not own the rights to any content such as the music

  • Brooke Wentz

    Thanks for re-sharing! It’s so wild to see this! (That $500 fee has gone up to $750.) Yet, more importantly, all this info and more juicy tidbits will be published in my forthcoming book in November….Music Rights Unveiled. My partner, Maryam Soleiman, and I spill the beans on tricks-of-the-trade, and how to get the best price out of copyright holders. Crazy stories and more abound!

    • Eric Martin Zivitz

      My son is trying to clear a rolling stone song for his film school short film. Is there any low cost way to clear the song?

      • Brooke Wentz

        If it’s for his classmates only, he won’t need to clear the song. But do tell him there is no ‘low cost’ way to clear a Stones song.

  • Enheduana Nannar

    Question: You mention an exception in the case of beginning or end credits. How are permissions different in those cases? Thanks for all the great info!

  • Yucef Mayes

    I want a Fela Kuti song for the trailer of my short film. It is a film of the African-Diaspora. I am fundraising now, but I want to use the song to promote the trailer. Do you think it is possible to set up a deferred payment?Do you think it is possible to get this at a low cost?

    • Liz Lenjo Kags

      Hi Yucef. I am IP & Entertainment Lawyer from Kenya and I know the legal representatives of Fela Kuti’s estate. They are very active in protecting their IP. Reach out to them first to understand their terms and also negotiate. You just never know. All the best.

  • Ry Ro

    Hi,

    I am shooting a documentary and one of the focuses of the film has a scene where she is singing along to a pop song on the radio. Is this is a situation where I would need copyright permission?

    Thanks