Have you ever suddenly been struck by the realization that a scene in your film just had to be set to a particular song? Maybe it was the Tom Waits cut that served as the soundtrack to your adolescence; or a Moby track that someone in your crew was playing during production; or a piece of classical music that would do for your movie what Mahler’s Fifth Symphony did for Visconti’s “Death in Venice.” The right piece of prerecorded music can make a vast difference in how a scene plays. The problem is figuring out how to get permission to use it without draining your budget. Learning about how to acquire the rights to prerecorded music on an independent filmmaker’s budget can be discouraging–more than a few low-budget filmmakers have discovered that music licensing, particularly of songs recorded by current, well-known artists, can be both costly and time-consuming. But if you are determined to use a specific piece of music, and want to take the legal steps to ensure that you won’t wind up in litigation after your film becomes the next indie sensation, you’d better cast off the bliss of the innocent.
First of all, determine which licenses you need. The most important ones for use in films are “synchronization licenses” and “master recording licenses.” Synchronization, or “sync,” licenses pertain to the synchronization of a piece of music to any visual medium, from TV to film to Web broadcasting. When you obtain sync rights to, say, Blondie’s “One Way or Another,” you may legally use a rerecorded version of the song in your film. To use Blondie’s version, however, you will need to obtain a master recording, or “master,” license. It is important to understand and be aware of this distinction, because the owner(s) of the copyright of the composition may differ from the owner(s) of the copyright of the recording you want to use.
Conduct Thorough Research
Your goal is to determine both who owns the copyright of the song you want to use, and with whom you will need to negotiate to obtain the necessary licenses. There are several avenues where you can find this information (see sidebar), but try starting with BMI and ASCAP, the two performing artists’ rights organizations that, between them, represent nearly every songwriter and composer working today. BMI and ASCAP do not issue the licenses you will need, but they each have a vast database that contains reliable information on the publishing of the artists they represent.
BMI or ASCAP will refer you to either the publishing company itself, or to an agency that represents the publishing company. These agencies, the best-known of which is the Harry Fox Agency, negotiate licensing agreements on behalf of the publishers of the song. If the song you want is shared by more than one publishing company (which is nearly always the case), such an agency often represents the interests of all the publishers involved.
If neither BMI nor ASCAP gives you the information you need, call the artist’s record company and request contact information for the artist’s publishing company. However, depending on who answers the phone at the record label, you may be speaking with someone who doesn’t have a complete understanding of the publishing scenario for the song you want. Copyright ownership is often complex and convoluted. To cover all your bases, try to get contact information for the artist’s attorney as well, and make sure that the attorney’s depiction of the publishing scenario matches the record label’s.
After you successfully contact the song’s publisher, or the agency that represents the publisher, the publisher or agency will communicate your interest in the song to the copyright owner. The copyright owner will then determine a fee for the license agreement, and the publisher or agency will make you an offer. Licensing fees are not standardized and vary widely. If you want a song by Prince or the Rolling Stones, you might expect to pay tens of thousands of dollars, or more. If you are interested in a distinctive but lesser-known artist, you might pay a fraction of that amount.
When Your Name Isn’t Spielberg
Some independent filmmakers have taught themselves the basics of music licensing by trial and error. Mark Osborne, writer-director of the popular IFILM short “More” and the feature film “Dropping Out,” which will screen at this year’s Sundance Film Festival, was inspired to make the six-and-a-half-minute “More” by the New Order song, “Elegia.” Osborne analyzed the song’s structure and wrote the animated film to respond to the musical twists and turns of the song. So, of course, by the time he had completed the film, no other music would have suited his needs, and he went about trying to license the song.
Osborne contacted New Order’s management, and after three months, the band agreed to grant him permission to use the song. Unfortunately, their permission turned out to be relatively unimportant–Warner Brothers and other interests own publishing rights to the song as well.
“I thought I was free and clear,” Osborne says. “But months later their manager said, ‘Oh, you never contacted the label?’” Osborne went on to contact Warner Brothers and after six more months of making phone calls and writing letters he was able to license the sync rights to the song, as well as worldwide perpetuity rights, which entitle him to use the song in the film forever.
The struggle to get permission to use “Elegia” highlighted Osborne’s relative lack of clout as an independent filmmaker. “It can be a difficult process to navigate,” he says. “If you blindly go to the tables, you might have trouble.” For “Dropping Out,” Osborne contacted a music clearance consultant, Greg Dawson, to help with licensing. It is a step he would recommend to other filmmakers whose budget can sustain the extra cost. “It was great to just hand him a list and let him do the work,” he says.
If you have the extra financial padding, there are music clearance companies out there that will make your music licensing experience relatively painless. When you retain the services of a company such as Dawson Music or Signature Sound, their employees will determine which rights you need, conduct all the necessary copyright research, obtain license fee quotes, negotiate the most favorable terms for your agreement, review the agreement and deliver the licenses to you, ready for execution. The costs will be significantly higher than if you were going it alone, but if you have 20 songs to license, as Osborne did for “Dropping Out,” and you can afford to hire someone to do it for you, then by all means, do it.
Otherwise, get ready to start making those phone calls.