This is part of a series of book excerpts from Independent Filmmaking, The Law & Business Guide for Financing, Shooting & Distributing Independent & Digital Films designed as an introduction to the many legal issues involved in the filmmaking process.
For most modern films, music has become an integral element of the story-telling process. Music can be used to accentuate the action, invoking the emotional response sought by the filmmaker, it can come from natural sources such as the car radio shown on screen, or it can be created directly by the characters in the film. Each of these different types of music plays not only a different role in the story, but has a different legal relationship with the filmmaker. The music performed by the characters in the film, it is labeled foreground music. In contrast both the musical score originally composed for the film and any recorded songs played are considered background music. Because the rights for licensing music for film, television and videogames has become the most intricate licensing of any copyrighted works in the law, each type of music must be treated separately.
The filmmaker wishing to utilize a successful recording of a popular song must enter the Byzantine world of music licensing. Since American Graffiti, the modern film musical has been reinvented as a greatest hits collection of popular or cutting-edge genre music. For these films, the filmmaker also takes on the role of record album producer, collecting the right mix of sounds and artists — collected from a variety of songwriters, singers, music publishers, and record labels. Each has an interest in the copyright used in the film and each must be represented in the licensing process.
1. 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) are protected by a copyright held by the composers. The composers may be represented by a songwriting team such as Lennon & McCartney, a team of the composer and lyricist such as Rodgers & Hammerstein, or a single person. Regardless of the number of composers, they jointly hold a single copyright.
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.
In this way, Motown Records owns the recording of Trouble Man, a song copyrighted by the singer and composer Marvin Gaye. If the filmmaker wishes to utilize the song, then the composers (or the publisher to which the composers have assigned their rights) must license the song. 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 result in the entire film being unmarketable in some or all markets.
2. Types of Rights Necessary
Every film distributed today intends each film to be shown theatrically, on premium cable, broadcast television, cable television, non-network broadcast television, and home recording machines (VHS tape, laser discs, DVDs, etc.). These markets are to be exploited worldwide. In addition, the Internet is quickly evolving into another film distribution media, both for downloads and for streaming performances. To exploit these markets, the distributor must acquire a number of different legal interests. Most distributors expect that the acquisition of these rights has been arranged or accomplished by the filmmaker.
The public performance right in music protects the copyright holder from any public performance of a copyrighted without authorization. The performance of the song in the movie theatre and on television both constitute public performance rights that the filmmaker must acquire before the movie can be played in the theater or broadcast on television. Historically, this right was reserved only for the composers in the song, not the record company in the sound recording. Recently, however, sound recordings were granted a limited public performance right in digital sound recordings. For some digital films, this new right may extend to digital films as well.
The right of reproduction protects both the composers and the recording companies from unauthorized creation of copies of a sound recording in any medium. Most consumers view this as the rules about taping radio broadcasts or ripping CDs, but in the commercial context, this would apply to making prints of a film embodying songs and sound recordings, and more importantly, creating copies in all the VHS tapes and DVDs.
If the filmmaker contemplates a soundtrack album, then the reproduction right must extend to use in this format as well.
In addition to the statute-based rights of public performance and reproduction, copyright recognizes a distinct right to associate a song with a particular audiovisual image. Whether used for films, television or commercials, the right to synchronize the pictures with the sound is a distinct legal right that must be separately protected. Although the law allows some sound recordings to be made using a statutory or compulsory license,1 these provisions apply only to non-dramatic works, and cannot be used for copies made as part of an audiovisual work such as a film soundtrack.
The original film score is the background music written specifically for the motion picture. Composers such as Elmer Bernstein, John Williams, and Danny Elfman have created intricate orchestral works that rival the great opera scores and symphonies of the past centuries. Generally, after a series of meetings with the filmmaker regarding the goals for the music overall and for each scene, the filmmaker provides the composer a rough cut of the edited film. The composer creates the score, which is then modified and refined until the musical beats within each measure align perfectly with each frame of the picture. Arrangements are made — either for a live orchestra or for an electronically recreated performance — and the music is recorded as the finished cut of the film is played. Like Foley artists, the musicians carefully play to match the image and timing on the screen, accompanying it as an orchestra would accompany a ballet or opera.
The musical track is recorded separately so that it may be incorporated into the final prints of the film. For foreign distribution, the sound and dialogue tracks are delivered separately so that the original dialogue can be replaced with a dubbed sound track.
1. Work-For-Hire Productions
For the filmmaker, the legal relationship with the original composition is a work-made-for-hire or a complete assignment of copyright. Under copyright law, certain types of works can be created that vest the copyright in the employer rather than the employee. The first of these two situations occurs when an employee creates a work in the regular scope of his employment. So, for example, if the film company were to employ the composer for a reasonable length of time for the purpose of writing compositions for the motion picture or pictures created by the film company, then the film company may be considered the copyright holder of the composition rather than the composer. Courts look to the nature of the employment relationship with heavy emphasis on tax status, withholdings and insurance, the ability to control the work, the actual control of the work, and the ability to add additional projects without additional pay. It would not be good planning to rely exclusively on the employment relationship. At a minimum, the employee should have an employment agreement that carefully specified that the compositions were created on behalf of the employer and intended to be treated as work for hire.
The second category of work for hire provides greater certainty. For nine categories of work, an employer can specially commission works. Among the nine categories are motion pictures and audiovisual works. This is very important because most musical commissions are outside the scope of this category. The filmmaker can specially commission the work as a work for hire. The agreement must be in writing and signed by both parties. The agreement should be signed before the work is begun, but certainly the earlier the better.
2. Assignments of Copyright
If the film receives worldwide success, the work for hire provisions may create additional difficulties. Some countries do not recognize the work for hire concept, rendering any such understanding unenforceable. To protect against this problem, the employment agreement or agreement for the special commission should also include a paragraph stating that any rights not granted as a work for hire are irrevocably assigned by the composer to the filmmaker in perpetuity. This means the composer cannot reclaim the rights, and the grant will last forever. (A reversionary right in U.S. copyright law makes this contractual promise limited to approximately half the life of the copyright. This is why the use of the work for hire is more useful in the U.S. while the assignment is more effective abroad.)
The composer may insist on a third alternative, licensing the score for the motion picture but retaining all other rights. In this situation, the rights of the score’s composer would be the same as those of the composers for any single featured in the film.
In the United States the singers and musicians performing on a song have no interest in the copyright. As a result, no particular contract language is necessary to protect the filmmaker’s copyright in the work. Despite this, however, a performer may protect himself from the unauthorized use of his performance. As a result, the film company should be sure that every singer and musician has signed a contract that specifically authorizes the film company to record the performance, and assigns any copyright interest in the film company.
As an added precaution, the language should also include a work for hire statement in the form suggested for the composer of the film. The assignment language may help avoid problems involving the interpretation of the contract in foreign jurisdictions, and the work for hire may anticipate any additional changes to copyright as it continually increases the range of possible copyright holders.
1. See, 15 U.S.C. §115 (2001) (providing a statutory rate presently starting at $0.055 per song for each recording manufactured).