Filmmaking 2.0

Licensing Prerecorded Music

August 2009

By Jon M. Garon*

This is part of a series of book excerpts from The Independent Filmmaker's Law and Business Guide: Financing, Shooting, and Distributing Independent and Digital Films designed to introduce filmmakers and others interested in creating content on the legal issues involved in the filmmaking process.

Since American Graffiti, the modern film musical has been reinvented as a greatest hits collection of popular or cutting-edge genre music. But if a filmmaker wishes to use recordings of popular songs, she must enter the byzantine world of music licensing. The filmmaker takes on the role of a record album producer, assembling the right mix of sounds and artists—collected from a variety of songwriters, singers, music publishers, and record labels. Each party has an interest in the copyright of the songs to be used in the film, and each must be represented in the licensing process.

Two Different Copyright Holders

The recording of a popular song is protected by two separate copyrights. First, the composition (the lyrics and the written music) is protected by a copyright held by the composers. The composers may consist of a song-writing team, such as Lennon and McCartney; a composer and a lyricist, such as Rodgers and Hammerstein; or a single person. Regardless of the number of composers, they jointly hold a single copyright. In most cases, the composers have assigned these rights to the music publisher, so the publisher is the party with which the filmmaker must negotiate to obtain rights to use the music and lyrics in the film.

Second, the sound recording of the song is protected through a copyright held by the producer of the song or the record company that manufactured and distributed the song. The performers on the recording are not protected by copyright but look to employment contracts with the record company for participation in the song’s revenue.

If the filmmaker wishes to use a particular recording, then both the composers (or the music publisher to which the composers have assigned their rights) and the producer or record company must license it. For instance, Motown Records owns the recording of “Trouble Man,” while singer and composer Marvin Gaye owns the composition rights. If the filmmaker wishes to play the Motown version of the song, then both the representatives of Marvin Gaye as composer and Motown as owner of the sound recording will need to grant permission to use the work. In addition, because of a long, strained history, there are a variety of different rights that must be identified and licensed separately. Failure to include any of these discrete rights in the contract can create substantial problems when distributing the film, or it can result in the entire film being unmarketable in some or all markets.

Every film distributor today intends for each film to be shown theatrically and via premium cable, broadcast television, standard cable television, nonnetwork broadcast television, home recording machines (DVD, Blu-ray, etc.), and online downloads and streaming performances. To exploit these markets worldwide, the distributor must acquire a number of different music rights. Most distributors expect that the acquisition of all these rights has been accomplished or arranged by the filmmaker.

Rights from the Music Publisher: Public Performance, Reproduction, and Synchronization

To properly use a piece of music, the filmmaker needs to acquire three specific rights from the composer or music publisher. Typically, all three rights are acquired in the same license agreement. Together, they give the film company the right to make its own recording of the song for use in the film. To use a prerecorded song, the film company needs these rights from the composer or music publisher plus rights to reproduce the prerecorded song from the record label.

Public Performance

In music, the public performance right protects the copyright holder for the composition from any unauthorized public performance of his work. The performance of the songs in the movie theater, on television, or streaming over the Internet constitutes public performances, so the filmmaker must acquire this right before the movie can be played in such venues. Historically, this right was reserved only for the composers in the song, not the record company in the sound recording. Recently, however, digital sound recordings were granted a limited public performance right.

For the theatrical distribution of motion pictures, the public performance right must be obtained directly from the copyright holder, typically the music publisher. For other public performances of music, the rights may also be obtained through a license with a performing rights society, such as ASCAP, BMI, or SESAC.

Reproduction of the Composition

Because the film will be licensed to sell copies on DVD or other physical media or via digital downloads, the music and score also need to be licensed to allow the film distributor to make multiple copies of the composition. The license to reproduce the song is also known as the mechanical license.

Synchronization

In addition to the statute-based rights of public performance and reproduction, copyright also recognizes a distinct right to associate a song with a particular audiovisual image. Whether a song is used in films, television, video games, or other multimedia works, the right to synchronize the pictures with the sound is a distinct legal right that must be separately protected. The synchronization or synch rights are also provided by the publisher (or the composer, if there is no publisher).

Rights from the Record Label: Master Use License

The right of reproduction protects not only the composers but also the recording companies from unauthorized creation of copies of a sound recording in any medium. Most consumers view this as the rule against taping radio broadcasts or ripping CDs, but in a commercial context, it applies to duplicating songs and sound recordings in each print of a film and, more importantly, in every copy of the DVD.

To use a particular prerecorded version of a song, the film company will need to acquire the rights to that particular performance from the record label that owns the copyright in the master recording. If the filmmaker contemplates a soundtrack album, then the reproduction right must extend to use in that format as well.


* Jon Garon is admitted in New Hampshire, California and Minnesota.

Adapted from Independent Filmmaking, The Law & Business Guide™ for Financing, Shooting & Distributing Independent & Digital Films, A Capella Books (2d Ed. 2009) (reprinted with permission). Jon Garon is professor of law, Hamline University School of Law; of counsel, Gallagher, Callahan & Gartrell.

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You may contact
Jon Garon at
800-528-1181.

 

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