Utilizing Noncommercial Music for Film

Jon M. Garon
Published on : 2009-08-05

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.

Every Hollywood studio has a team of lawyers and paralegals who focus exclusively on the music licensing issues for their productions. The independent filmmaker must find a way to accomplish this same task. Through creative planning, she can bring the same artistic vision and entrepreneurial approach to the film’s music as she has to every other element of the film.

Non-Commercial Music

If the filmmaker is willing to use more generic music, a music production library will be a helpful source of musical content in a wide array of styles, instrumentations, and arrangements. These production libraries own both the composition and the sound recording copyrights, so they provide one-stop shopping for the musical needs of the production. Another type of bureau acts as a clearinghouse service. These companies do not own any rights in the music, but they serve to locate the rights requested, help establish the pricing, and ensure that the appropriate rights are identified.

1. Royalty-Free Music

There are many royalty-free services available that, for a fixed fee, provide prerecorded music and the unlimited right to use that music. Filmmakers must be careful to acquire the rights to use both the song (music and lyrics) and the prerecorded version of that song. They must also ensure that the royalty-free license includes theatrical distribution of the film, synchronization with the motion picture, and rights to reproduce the song and the particular recorded version of the song in all media. If all these rights are included, then this will be the easiest way to provide songs for the film.

2. Public Domain Music

The independent filmmaker will often choose to avoid licensing songs altogether. The costs and administration simply outweigh the benefits to the story and film. Such a choice will not prevent the use of music; it will only change its source. One alternative is to exploit songs no longer protected by copyright because the work is in the public domain.

All songs published in the United States before 1923 are now in the public domain. Many other songs did not have their copyright renewed, so those compositions are also in the public domain. Filmmakers must be careful when using public domain songs, however, because a particular recording of the song may still be protected by copyright. Different legal rules were in play during various time periods, so it is impossible to make any general statement regarding the copyright status of sound recordings, but filmmakers should not assume a sound recording is in the public domain just because the music itself has fallen out of copyright. To sidestep this difficulty, the filmmaker may choose to record a new version of the public domain music using film company employees.

3. Other Alternatives

Filmmakers may also create original songs for the movie, or purchase the copyright to the music outright. In these cases, filmmakers commonly choose to record the music specifically for the motion picture. Regardless of the source of the song, original recordings greatly reduce the scope of rights to be licensed.
Independent films can achieve both artistic and commercial success by identifying bands that are not yet signed to recording contracts. Their songs are not available as commercially licensed music, but the rights can easily be acquired directly from the composers and the band. By featuring their songs, the film may help launch successful careers for new talent and greatly reduce the cost and complexity of acquiring the music necessary for the film.

Commercially Licensed Music

Industry tradition has developed a byzantine series of contracts for each of the types of rights, rights holders, and media. The practice has created an absurd number of separate contracts and confusion regarding the use of the music over the life of the film. For some of these choices, the costs may be prohibitive and the filmmaker must choose to either do without the desired song or risk buying something less than all the rights he may need to exploit.
The use of a festival license creates significant risk that the film company will not be able to secure ongoing rights to some or all of the songs important to the sale of the film. At a minimum, the filmmaker should note which songs have not been acquired, so that there is no contractual obligation to deliver the rights to particular songs to the distributor of the film. The distributor should provide the filmmaker some leeway to acquire the songs used in the festival release version of the film or mutually agreeable alternatives.

For nonfestival contracts, the following are the key provisions of the music license.

1. Term

The rights should last in perpetuity. Although some contracts provide for five-year terms, this means that future sales of the film rights can be frustrated by the inability to acquire (or even identify) the music rights. At a minimum, the contract should include renewal provisions that guarantee the right to renew and specify the renewal fee. Otherwise too much can go wrong—for example, a new owner of the music rights (say, a company that purchases the music library in a bankruptcy sale) could demand exorbitant fees for the new grant of rights.

Of course, if the movie is never released or has only a short run, then the cost savings of the shorter term will be worthwhile. Since this is generally not the bet being made by independent filmmakers, a short music license term is probably the wrong place to save unless the savings is truly dramatic.

2. Territory

The territory should specify “the universe” rather than any particular region or even “the world.” Given the growth of the International Space Station and the increasing length of copyright, which could well extend to over a century, the universe may be the more appropriate territory. There is no reason to license anything less than worldwide, because even short delays in licensing the soundtrack at the time of foreign distribution may frustrate the distribution agreements.

3. Media Covered by License

The standard contracts will typically require a list of media. Given the rapid development of technology and the fact that technological growth is highly unpredictable, the media should be “all media now known or hereafter developed.” This should prevent future conflicts regarding various forms of distribution over the Internet and whatever will come after.

Older contracts may list theatrical exhibition, television (be sure to include free and pay or further identify the various tiers of broadcast, satellite, and cable television), foreign distribution, and specialty markets (16mm prints, airplane cuts), but will often omit some of the home distribution technologies, which include DVD, Blu-ray, etc. The list of media for both the public performance category and the home use category are evolving, and both should be defined broadly.

4. Public Performance Rights

Most music license agreements are drafted very narrowly. As a result, traditional contracts recognized that the public performance rights were only necessary in those media that were screened publicly. The license of a song in a film extended public performance rights only to theatrical exhibition and television broadcasts. Home presentation of a DVD does not involve a public performance, so many contracts do not give any public performance rights for DVDs or similar products. Nonetheless, videos are often shown in schools, community centers, and other smaller public venues. Without the public performance rights in DVDs and the like, the filmmaker cannot authorize any such performances. For some independent films, the guerrilla marketing strategy could be frustrated by the failure to secure public performance rights across all media.

In addition, the need for public performance rights in digital sound recordings is relatively new and virtually untested under the law. If the Internet or other interactive digital technologies grow in bandwidth and sophistication, the digital performance interests in sound recordings may become a significant right. All filmmakers, but particularly those digital filmmakers hoping to exploit the Internet for some portion of the film’s distribution, must purchase the limited digital performance rights available from the record company.

5. Reproduction or Mechanical Rights

The right to reproduce a song is often limited to the home media market (DVD, Blu-ray, etc.). Nonetheless, each print of the film also includes a mechanical reproduction of the sound recording and the composers’ song, so this mechanical license should include all media. The mechanical license applies to both the composer and the record company if the record company’s original recording is to be used.

6. Synchronization Rights

The right to use the song in conjunction with the visual image is an aspect of the public performance right. As such, this provision is essential in the composers’ agreement, but because of the new digital performing rights, it is advisable that it be included in the license from the record company as well.

7. Scope of Usage

The contracts will narrowly limit the way in which a song may be used. First, the song may not be altered (although it typically can be used in part rather than in its entirety). This means that the lyrics cannot be changed. If a song is to be featured in the foreground as a parody sung by a character, or if it will otherwise be changed for dramatic effect, then this particular usage must be separately negotiated, and such permission will not be granted lightly.

Second, the song can only be used in the film as a whole. Permission to use a song in the film’s commercials or trailers must be negotiated separately. The use of the song as part of a music video based on the film must also be separately negotiated.

Third, the filmmaker must provide credits for the composers, publisher, performing artists, and record company from which the rights were licensed. They generally appear in the end credits.

Finally, the filmmaker’s rights will be nonexclusive, allowing the copyright holders to license the song to other films as well.

8. Fees

The range of fees can vary greatly, depending on the popularity of the song, the budget of the film, whether the music is used in the foreground or background, whether the music is featured in the story, and what other songs are being licensed. Typically, the U.S. theatrical and television broadcast rights are contracted on a flat-fee basis. Outside the United States, theatrical performances are covered by licenses provided by performing rights societies. The mechanical rights are increasingly based on a royalty fee tied to the number of units manufactured or sold. To get a general idea of the range of licensing fees and structures, the filmmaker or his attorney may wish to consult Kohn on Music Licensing by Al and Bob Kohn, which provides a list of licensing ranges for the various types of licenses needed.

* 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.