The Truths & The Myths About Music Licensing
There is plenty of information on the internet about music licensing – forums, blogs, and websites that explain what it is and how it works, but how much of it is misinformation?
Well, unless you’re both a filmmaker and an entertainment lawyer, you may not know the difference between the myths and truths about music licencing. This post is designed to help you do one thing; have factual knowledge about music licensing. Enter Songfreedom CEO, Matt Thompson.
For six years, Matt has worked with labels like Universal, Sony, and Warner (as well as their publishing counterparts) on a weekly basis dealing with contract negotiations with licensing departments as well as business affairs and legal departments. Clearly Matt knows his way around the music licensing business, which is why we decided to ask him some common questions about it:
NFS: What is the most common myth you hear when it comes to music licensing?
Matt Thompson: Hands down, that something is “personal” or “fair” use. For every example someone has shown me over the years, asking if it falls under personal or fair use, I can’t recall one that actually was. It’s pretty rare in my world that you actually see anything along those lines, because we are almost always talking about music being used in videos.
NFS: So a song being used in a video couldn’t be considered personal or fair use?
MT: That’s not entirely true, but almost always true within the professional film community. Personal use is really something that exists for listening to music in your home, car, or on headphones. There’s no part of your iTunes download that gives you the rights to put that song in a video. You’d need something called a sync license for that, unless something is truly “fair use”.
NFS: Can you give an example of something that would be fair use?
MT: First of all, I should be clear that even though there is a great deal of overlap from territory to territory, I’m talking about U.S. copyright law here. While there are certain criteria for which something could qualify as fair use (Columbia University actually put together a pretty good checklist.), one of my favorite examples is truly incidental use.
An example of that would be if you had your camera outside filming your kid riding a bike for the first time. Everyone is cheering and excited and not really paying attention to anything else (rightfully so). But 3 blocks over there is a parade with a marching band going by and they are playing a Top 40 song. While you, of course, didn’t get written consent from the marching band to record their performance and certainly don’t have consent from the artist or any of the other writers or their representative publishers on that particular song; you truly didn’t intend to capture the music and it really has nothing to do with what you’re capturing in the video.
The other side of this would be something along the lines of a filmmaker capturing the first dance at a wedding reception, where they clearly intended to capture the song in correlation with the video. This is not incidental in nature and wouldn’t be part of fair use.
It’s important to note that the CU checklist has criteria listed that favor fair use. This does not mean that because you can check off a single box on the left hand column that you should run off and use a song under the guise of fair use. However, if you can check at least one box on the left and none on the right, then it is probably worth consulting a true entertainment attorney with a thorough understanding in copyright law to get an official opinion.
NFS: So, it sounds like the majority of our readers might not have a film that falls under “fair use”. How do they get what they need?
MT: It obviously depends on what they want to do with a film after it’s created, but it all starts with that sync license I mentioned. Of course there are one-stop-shop sites like Songfreedom, where you can find different rights from multiple owners tied up in one neat bow or have the licensing experts obtain rights on a case-by-case basis on your behalf, but let’s assume you want to do things completely on your own.
First you’ll need to know the difference between labels and publishers and the rights they represent. Labels represent the artist and the recording, the song as you’ve heard it on the radio performed by the well-known artist. Publishers represent the writers and the written song, which is to say the actual lyrics and composition. In some cases on a particular title there could be more than one label (or master right as it’s sometimes called), but there is often only one. However, it is not uncommon to have multiple publishers own part of a single song because several writers, represented by a different publisher, were involved in the writing process. This is where things can often get messy and in some cases drive the cost up.
Let’s use the example of most Top 40 songs. You would need to get approval from their label, for master rights on behalf of the artist. Then you need to get approval from all six writers, which are represented by about four different publishers (a couple of the writers have the same publisher as two of the others). So right there, you’re going to five different entities looking for approval from the artist and six different writers. That could be a total of seven managers and seven attorneys involved on top of the licensing, contracts, legal, and royalties team at all five entities. That’s a LOT of cooks in the kitchen. Of course you’re assuming you were able to dig up all of the correct information so you knew who to go to in the first place. Think the labels and publishers keep a record of all of the other rights owners? Guess again. You’ll be searching across a few different platforms to gather this information.
Well now that you know who to go to, it’s time to get your sync license. Since whatever fee you’re proposing is being split about 20 different ways (no exaggeration), it needs to be significant to be worth everyone’s time. Even if it’s $20Kfor a small project, that really doesn’t do much for anyone at only $1K each (assuming an even split for simple math purposes, though the splits in reality are anything but simple). Don’t get me wrong, you and I know that $20K for a music budget (especially for only 1 song) in a smaller production is a ton of money, but that doesn’t necessarily matter. As much as some might like to see a reduced price for smaller one-off uses, you can see how it isn’t cost effective for the rights owners. In fact, they are working on placements in films and ads all day that will bring $100K-$1M, so while they are potentially working on your $20K licenses it’s actually costing them money.
NFS: That’s an unbelievable process but it all makes more sense when you lay it out there as far as how much things cost. You mentioned that filmmakers could obviously go to music licensing sites like Songfreedom for help, are there any other ways to simplify the process and keep costs down?
MT: Absolutely there are. But let’s save those for our next article, where we can answer some more follow up questions.