Generally, music is the last major element to be added to a film, so a producer who is not familiar with the costs and procedures for acquiring music rights is in for a shock.

Whatever type of music is embedded into your film, before the finished film is delivered to the distributor, the film producer needs to obtain (or "clear") at least two rights for each piece of music -- one for the song itself and one for the recording of that song. To complicate matters, the songwriter often is not the sole owner of the song rights and the performer of the song is rarely the sole owner of the rights in the sound recordings. Those rights are normally held by publishing companies and record companies, respectively.

A Simple Example
To illustrate this point, let's follow the clearance procedure for using a single song to be included in the soundtrack of a feature film. Keep in mind that this example IS ONLY for the right to use one song in a feature film for theatrical release, and does not include rights for any other use, such as using the song on the film soundtrack album, which would involve additional contracts and additional payments.

Using a song in your film begins with obtaining a "Synch License" from the owner or owners of the song, which is often not the songwriter. A quick look at the back of the CD normally will provide you with the name of the songwriter or songwriters, or you can go to the Web sites of the performing rights societies which represent most songwriters in the USA: ASCAP (http://www.ascap.com/ ), BMI (http://www.bmi.com), and SESAC (http://www.sesac.com/ ). A search of these Web sites by song title or songwriter will usually provide you with the name and address of the entity with authority to provide you with a Synch License to use the song.

Practice Tip : The songwriter may not know who has the rights to the song, or there may be multiple songwriters for the song. Now that you've identified the entity who can grant a Synch License, you must determine exactly what rights you want to acquire. Keep in mind that because everything is priced on an a la carte basis, the more specific you can be, the less the synch rights will cost.

So, before you contact the song rights owner, you must know things like: (1) the duration of your license for use of the song (five years is often the maximum you'll get, but you want "in perpetuity"); (2) the territory in which your film is likely to be shown (worldwide, or simply the U.S. and Canada); (3) the form of distribution of your film (for example, full theatrical release, cable TV, PBS, or art houses); (4) use of the song in your film (such as opening title, featured, background, or closing credits); and (5) any "first-use" restrictions which might apply to your film. You should also determine whether you want home video/DVD release rights for the song.

Practice Tip : Unless you have a lot of money to spend, obtaining music rights is a slow process, often taking months to negotiate and document. So, don't begin the music rights clearance process two weeks before you are required to deliver your film.

The second phase of "clearing" music rights is to obtain a license (generally known as a "Master Use License") from the owner of the sound recording you want to include in your film. The sound recording frequently is owned by the performer's record company and the first place to start is the CD which contains information on the performance you want in your film.

If the CD doesn't contain the needed information, you have a number of other sources to check including: (1) the U.S. Copyright Office Web site (http://www.loc.gov/copyright/ ); (2) the Web site maintained by the performer of the song; (3) the Web site of the record company which released the CD or record album; and if all else fails, (4) the Web site of Amazon.com which often contains information on the company which owns the performance rights.

As with obtaining Synch Licenses, you should think about what rights you want to obtain (as set out above) before you contact the holder of the recording rights of a song. Again, these negotiations may take several months to complete, particularly if you are working on a budget.

Unless you represent a studio or a major production company, never, never try to get a better price for use of a song by telling the publishing company how much publicity you will provide for the artist by embedding the music into your independent film. They've heard it all before and it may cause them to deny you the rights you want or to increase the price of the license.

Practice Tip : When obtaining rights for film use of well-known music, it is important to keep in mind that the owners of the music and performance rights you need may not be willing to license those rights to you, or the owners may demand far more money for those rights (sometimes hundreds of thousands of dollars) than you have in your budget. So, never, never tie your film to a single song or performer unless you are certain that you can obtain the right to use that music.

For more information contact:
Peter Strand at (312) 715-5756
peter.strand@hklaw.com
or
Bob Labate at (312) 715-5700
robert.labate@hklaw.com  

Holland & Knight LLC
131 South Dearborn 30th Floor
Chicago, IL 60603

* Originally published in PerformInk Entertainment and Law Column, December 11, 2001.